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2020 Supreme(Kar) 166
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ABHAY S. OKA, HEMANT CHANDANGOUDAR, JJ.
Sowmya R. Reddy D/o Ramalinga Reddy – Appellant
Versus
State Of Karnataka – Respondent
Writ Petition No.52731 of 2019 (GM-RES) C/W Writ Petition No.52718, 52738, 52768 of 2019 (GM-RES)
Decided on : 13-02-2020
For the Appellant :SRI PRADEEP NAYAK, SRI VIKAS MAHENDRA, ADVOCATES)
For the Respondent:SRI PRABHULINGA K. NAVADAGI, ADVOCATE GENERAL A/W SRI VIKRAM HUILGOL, HCGP
Headnote:
Citizenship Act, 2019 - Constitution of India, 1950 - Article 19 - Criminal Procedure Code - Section 144 - Violated of fundamental right of citizens - Writ jurisdiction – Employment and service - Whether dissent is right or wrong - Whether there was any material before District Magistrate and in view of well settled legal position this Court cannot go into question of adequacy of material - Whether District Magistrate was satisfied regarding existence of an apprehension of creation of law and order situation due to organization of protests as well as Bandh on same days - Whether issue raised by protestors is right or wrong or it is justified or unjustified - Whether any careful inquiry was held by District Magistrate who passed order - Challenge in these writ petitions under Article 226 of Constitution of India is to order made by District Magistrate City who is also Commissioner of Police of City on December - By said order in a purported exercise of power under Section 144 of said Code District Magistrate proceeded to impose various prohibitions within City limits from December starting from midnight of December - Order prohibited assembly of a group of five or more persons organizing any public processions or protests Raasta Roko public meetings carrying of weapons etc. A direction was also issued that all permissions granted for conducting any protest shall stand cancelled during said period – Incidentally there is also a challenge to cancellation of permissions which were granted under Regulation of Public Processions and Assemblies Order, 2009 - When petitions were moved on December various issues were raised regarding legality and validity of order - Division Bench while considering prayer for interim relief noted that impugned order will come to an end on next day – Held, Learned Advocate General also pointed out communication issued by Director General and Inspector General of Police which records the necessity of passing an order under Section 144 of said Code - Firstly there is no reference to said opinion expressed by superior police officer in impugned order – Secondly Director General and Inspector General of Police is topmost police officer in State to whom Commissioner of Police is subordinate - When Commissioner of Police exercises power under sub-section (1) of Section 144 of said Code he does not act as a police officer but he acts as a District Magistrate and therefore he cannot simply rely upon opinion expressed by police officer who may be incidentally his superior officer in police machinery - In fact he cannot get influenced by opinion of his superior Officer in police hierarchy while passing an order under Section 144 - Effect of order under sub-section (1) of Section 144 of said Code is to take away fundamental rights of citizens and therefore subjective satisfaction of District Magistrate and formation of an opinion as required by sub-section (1) of Section 144 of said Code are condition precedent for exercise of power under Section 144 of said Code - So is requirement of recording at least brief reasons - Court may note that orders passed under Section 144, Criminal Procedure Code have direct consequences upon fundamental rights of public in general - Such a power if used in a casual and cavalier manner would result in severe illegality - This power should be used responsibly only as a measure to preserve law and order - Order is open to judicial review so that any person aggrieved by such an action can always approach appropriate forum and challenge same – But aforesaid means of judicial review will stand crippled if order itself is unreasoned or un-notified - This Court in case of supra also stressed upon requirement of having order in writing wherein it is clearly indicated that opinion formed by Magistrate was based upon material facts of case - Apex Court observed that existence of power of judicial review is undeniable and therefore law requires District Magistrate to state material facts for invoking this Power - In paragraph Apex Court held that if order itself is unreasoned or un-notified power of judicial review which is a basic feature of Constitution will be crippled - Even in conclusion drawn in paragraph Apex Court held that power under Section 144 of said Code should be exercised in a reasonable manner and must be based upon material facts indicative of application of mind which enables judicial scrutiny of orders - Court have no manner of doubt that impugned order is ex-facie illegal in light of law laid down by Apex Court in cases of supra and supra - In fact on first principles impugned order is completely illegal - Illegality cannot be cured or tolerated even after giving necessary latitude – Therefore court have no option but to hold that exercise of powers under sub-section (1) of Section 144 of said Code by passing impugned order was illegal - While court record above findings court must note here that court have not gone into question whether State Government had grounds available to pass a valid order under sub-section (1) of Section 144 of said Code - In fact court are not concerned with this aspect - Even assuming that State Government had grounds available to pass a valid order that is no ground to uphold impugned order as impugned order does not and cannot stand test of judicial scrutiny in light of well settled parameters which are laid down by Apex Court which have been aptly summarized in case of supra - Observations which court have made in this Judgment and order are confined to impugned order and this judgment and order shall not be construed to mean that even if a situation arises which warrants exercise of powers under sub-section (1) of Section 144 of said Code State Government is helpless in matter - Petitions are partly allowed
JUDGMENT :
OVERVIEW
The Apex Court has repeatedly held that under clauses (a) and (b) of Article 19 of the Constitution of India, a fundamental right has been conferred on the citizens to protest and demonstrate against the alleged wrong done by the public functionaries in a peaceful manner. Both these provisions confer a right on the citizens to assemble peacefully and protest against the decisions of the Government and other authorities. It is the fundamental right conferred on the citizens to express a voice of dissent. It is irrelevant whether the dissent is right or wrong. When such a valuable fundamental right which an essential part of democracy is said to be taken away by a prohibitory order issued under Section 144 of the Code of Criminal Procedure, 1973 (for short, “the said Code”), it is the duty of the Constitutional Court to test the legality and validity of such an order which prevents the citizens from protesting.
2. The challenge in these writ petitions under Article 226 of the Constitution of India is to the order made by the District Magistrate, Bengaluru City, who is also the Commissioner of Police of the City, on 18th December, 2019. By the said order, in a purported exercise of power under Section 144 of the said Code, the District Magistrate proceeded to impose various prohibitions within Bengaluru City limits from 19th December, 2019 starting from 6.00 a.m. till the midnight of 21st December, 2019. The order prohibited assembly of a group of five or more persons, organizing any public processions or protests, Raasta Roko, public meetings, carrying of weapons, etc. A direction was also issued that all permissions granted for conducting any protest shall stand cancelled during the said period.
3. Incidentally, there is also a challenge to the cancellation of permissions which were granted under the Regulation of Public Processions and Assemblies (Bengaluru City) Order, 2009 (for short, “the said Regulation Order”). When the petitions were moved on 20th December, 2019, various issues were raised regarding the legality and validity of the order dated 18th December, 2019 (for short, “the impugned order”). The Division Bench while considering the prayer for interim relief, noted that the impugned order will come to an end on the next day. Therefore, certain other directions were issued regarding dealing with fresh applications which may be made for organizing protests under the provisions of the said Regulation Order. In the same order, it is noted that though the impugned order will come to an end on the next day, as the impugned order amounts to deprivation of the fundamental rights of the citizens, the Court will have to go into the legality and validity of the impugned order.
4. It is undisputed that number of permissions were granted to hold protests against the Citizenship (Amendment) Act, 2019 (for short, “CAA”) under the provisions of the said Regulation Order and by the impugned order, all the permissions were cancelled. The case made out by the petitioners is that apart from the fact that the impugned order stands vitiated due to illegality, it has violated the fundamental right of the citizens guaranteed under clauses (a) and (b) of Article 19 of the Constitution of India of holding peaceful protests. That is the reason why though the order has worked itself out, this Court will have to go into the legality and validity of the said order, as it had the effect of canceling the permissions granted to hold peaceful protests thereby infringing the fundamental right guaranteed under clauses (a) and (b) of Article 19 of the Constitution of India of holding peaceful protests.
SUBMISSIONS ON BEHALF OF THE PETITIONERS
5. The learned senior counsel appearing for the petitioner in W.P. No.52731/2019 and other petitions has made detailed submissions. Firstly, inviting our attention to Section 144 of the Code, and in particular sub-section (1) thereof, he submitted that the formation of an opinion which is a condition
