The Supreme Court on Sunday asked Delhi authorities to explain why contempt of court action should not be initiated against them for closure of metro stations on October 10 amid the Cockroach Janta Party (CJP) protests.
A total of 45 metro stations, mostly in and around Central Delhi, were shut on October 10 in view of the protests at Jantar Mantar against Chief Election Commissioner Gyanesh Kumar and the Special Intensive Revision (SIR) of electoral rolls.
The closure of metro stations along with detention of key CJP leaders and opposition members had led to a flurry of petitions before the Supreme Court.
The principal matter before the Court was a contempt petition filed by advocate Shailendra Mani Tripathi against Union Home Secretary Govind Mohan, Delhi Police Commissioner Anurag Kumar and Delhi Metro Rail Corporation Chairperson D Thara. The plea alleged that Delhi Metro stations remained closed on Sunday despite the Supreme Court's October 9 saying there shouldn't be complete shutdown of public transport ahead of the protests.
At a special sitting held on Sunday, a Bench of Justices Joymalya Bagchi and V Mohana sought responses from the government authorities on the closure of metro stations.
"...we direct the authorities concerned to submit a short affidavit showing cause why contempt proceedings shall not be initiated. Issue notice upon the alleged contemnors to file an affidavit in response to the contempt petition and also submit a compliance report in respect of the terms of the order as aforesaid," the Court directed.
After taking note of submissions by various individuals and the Central government authorities, the Court proceeded to pass the following directions:
- One, metro and rail facilities shall function normally, unless regulations are required to be imposed, keeping in mind disturbance to public order as envisaged under Article 19(2) of the Constitution.
- Two, free movement of people in the city shall be permitted, subject to traffic regulations. Smooth movement of people in the city shall not be hindered and shall be permitted in accordance with law.
- Barricades imposed shall be reviewed. The requirement of imposition of barricades shall be reviewed forthwith, keeping in mind law and order and other traffic conditions.
- Internet facilities shall remain undisturbed, as per law....When we are saying internet facilities shall remain undisturbed, we are not taking away the powers under the Information Technology Act.
- There shall not be illegal detention, save and except by procedure established by law, particularly with regard to assemblage of people beyond the area within which it's imposed.
- Assembly shall be permitted in accordance with law, particularly in respect of peaceful assembly of people beyond the area where Section 163 BNSS is in operation, in accordance with law.
The Court also ordered that a board put up outside the Supreme Court, stating that Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which bars the assembly of five or more persons, has been imposed, shall be taken down.
"We have been informed that a notice board stating imposition of Section 163 BNSS in and around the vicinity of the Supreme Court has been put up. We direct the authority concerned to take down this board, if not already done, so that citizens as well as lawyers can have access to justice," the Bench ordered.
It also proceeded to remind protestors that protests should be peacefully and should not instigate others.
"All of you present here, if you are seriously interested in public welfare, please undertake that you will all protest peacefully and not instigate any other person," Justice Mohana said.
"Absolutely. And that undertaking should come from their side also about how to behave with peaceful protesters," said Senior Advocate Gopal Sankaranarayanan.
"We are duty-bound under Article 32 to protect and enforce fundamental rights," said Justice Bagchi.
Besides Tripathi's contempt petition, another plea before the Court was by Trinamool Congress MP and Senior Advocate Menaka Guruswamy who challenged the preventive detention of opposition leaders, including four former Chief Ministers, and other individuals during the protests. The plea raised questions concerning personal liberty and the right to peaceful protest.
Another contempt petition filed by Aman Prasad against Delhi Police Commissioner Anurag Kumar alleged excessive police action against protesters. The plea alleged that unarmed individuals were assaulted and detained, police personnel operated without identification badges and women protesters were mistreated by male officers.
The proceedings followed Saturday's protests organised by the CJP at Jantar Mantar. Delhi Police had denied permission for the demonstration, citing law and order concerns, while security arrangements and restrictions on public transport were imposed across parts of the capital.
CJP founder Abhijeet Dipke and other organisers were detained ahead of the protest.
The police action, including reported detentions of lawyers and opposition figures, subsequently prompted multiple petitions before the Supreme Court.
The Court then sat on Sunday to hear the petitions.
When the matter was taken up for hearing today, Senior Advocate Shadan Farasat, who was also detained yesterday by the police, told the Court that the actions of authorities amounted to that of a "police state".
"I was also brutalised yesterday along with a large number of lawyers. But our question was not only in respect of lawyers. The question we are raising is that we are part of a larger subset of citizens of this country. We don't have any separate special rights as lawyers. So all we are submitting is this. Yesterday, the situation in the city was, I can say, remarkably suppressive. A person was not even allowed to stand on the street. They were just picking and throwing people. My specific instance was, I was thrown into a moving bus after being picked up. That is what happened to me. But this is not about individuals or lawyers. It's about the citizens' right to protest. I say this with all responsibility, the sense I got was that yesterday we were one step away from a police state," Farasat submitted.
He said that the Court should pass orders to restore citizens' right to protest.
"And what we are requesting the Court is really that kindly restore the right of the citizens of this country to peacefully protest in the capital of the country. Yesterday, it was destroyed," he said.
Sankaranarayanan flagged that many lawyers were detained yesterday.
"These are lawyers, practising lawyers, who have lost their right to even move around in the city. It is that bad. The pictures are self-explanatory," he said.
"We know you all are aggrieved by what happened yesterday. We are not here to trivialise what happened," Justice Bagchi said.
Sankaranarayanan highlighted that Senior Advocates including Dinesh Dwivedi, Uttara Babbar and Shadan Farasat were detained and violence was unleashed on individuals marching peacefully.
"So there is action against lawyers. Mr. Dinesh Dwivedi, Ms. Uttara Babbar and Shadan Farasat. All three were detained at different points and well outside the perimeter of Jantar Mantar. Well outside. One was in Safdarjung. Another one was peacefully marching with some lawyers outside the Supreme Court. From what I understand, even right now Section 144 has been imposed outside the Supreme Court. If Your Lordships notice, is the nature of the violence that is perpetrated. If Your Lordships see those videos one by one which we have placed, you'll find that it's not even a question of proportionality...The first question is necessity, then comes proportionality. Necessity to detain individuals moving peacefully, unarmed, children, students, to beat them, hit them, kick them and have scuffles with them was completely and utterly uncalled for," he stated.
A woman lawyer recounted how she along with three others were picked up by the police from outside the Supreme Court when they were marching peacefully.
"We were about 150 lawyers who had collected in front of MC Setalvad chambers yesterday, and we had just started the walk. Peacefully, we were walking, and there they were at the red light. Four of us were picked up. We were three lawyers and one other gentleman. We were picked up and taken in a police van, prison van. We tried to tell them that we are marching peacefully, and the Supreme Court has given us permission. If there is any violence, then you could have taken action. We had just started the march, and this is what had happened," she said.
Senior Advocate Shoeb Alam flagged the measures taken by the police to ensure that protestors are not able to reach protests site.
"There are people who are being detained on trains and these are all because of micro-journalism, which is the trend of the day. And the flavour of our generation is based on the younger generation also. Everything gets reported. There are passengers who are being pulled out who are coming to Delhi. There are people who are being detained from outside Delhi, like in the NCR region, in Gurgaon, in Noida, etc. People's houses have been raided in this attempt to ensure that they don't reach the protest site," Alam said.
Alam further said that detention of protestors is a colourable exercise of power by police to prevent peaceful protests. He explained that police detain protestors and release them before 24 hours, thus effectively not violating any law.
"What is happening is also this, that they are being detained for less than 24 hours and then being released. There is technically no violation of the law. However, what happens is this, that by colourable exercise of power, their right to protest, which has been guaranteed by the Constitution makers and even by this Court, is now being infringed," he said.
Guruswamy said that around 45 detention centres have been opened in Delhi and around 7,000 persons including opposition leaders were detained.
"It is not just that the internet in this part of Delhi has been disconnected. It is not just that 7,000 people are reported to have been detained, with the State not providing anyone any official numbers. It is not just that 45 detention centres are reported to have been set up all over Delhi. It is not just that opposition leaders have been picked up, often from their parliamentary homes. It is not just that Members of Parliament have been barricaded into their homes and then taken away and run around the city in jailhouse vans," she said.
She also questioned how right to protest can be stifled without imposition of Emergency.
"The Constitution says in Article 358 that Article 19 rights (right to move freely and protest peacefully) can be restricted only in the case when an Emergency is imposed. So is the State saying to us that they have brought in an unimposed Emergency?" she asked.
She proceeded to draw parallels with the 1975 Emergency and the infamous ADM Jabalpur case.
"What is at stake is the suspension of citizens' peacefully exercised constitutional rights. That is what you are considering. The last time this Court had to consider such requests, such challenges, was at the time of the Emergency. We come back to you almost 50 years later because the Court at that point passed ADM Jabalpur. Your Lordships have the opportunity not to do that. That is why we are here today," Guruswamy argued.
She further said that the government was in contempt by shutting down metro stations and not allowing peaceful protests. Hence, the authorities should not be given any further time to explain their actions.
"We are asking only for contempt action to be taken vis-à-vis Your Lordships' own order. Why give them time till Tuesday to explain why they disobeyed the metro being functional on Saturday and Sunday, and arguably Monday and Tuesday, and Section 163 outside the gates of the Supreme Court? So this is the sum and substance. Please do not give them more time to continue disobeying Your Lordships' order. That is the request here," she said.
Senior Advocate Arundhati Katju submitted that it is for the State to answer and to assure citizens that these rights are protected, are not under a state of suspension and are available to exercise.
"Because the disobedience is not just to Your Lordships. It is a disobedience to the spirit and the text of the Constitution," she submitted.
Senior Advocate Kapil Sibal said that the right to protest cannot be taken away by any law and that the only restriction on it is 'public order' under Article 19 of the Constitution.
"No Police Act in this country, no statutory law in this country can violate Article 19(2), except for prevention of public order," he stated.
A citizen doesn't have to make an application for protest, he further argued.
"The process in which you protest is to be in accordance with procedure," the Bench reminded.
Interestingly, former Attorney General KK Venugopal also flagged the detention of his former junior.
"A former junior of mine was lifted and taken away in a police van, taken nine kilometres away and dropped 11 kilometres away. She could not access the Supreme Court. The man had no badge. Multiple violations. She was not informed of anything whatsoever," Venugopal said.
Solicitor General Tushar Mehta, appearing for the Central government, said that the prayers to release the detainees do not survive since most of the detained people have been released.
"Most of these people mentioned here were picked up at 2 PM and they were released at around 6 o'clock. So far as the habeas prayer is concerned, that may perhaps not survive," he said.
With regard to the closure of metro stations, he submitted that there was zero reduction in the volume of metro operations and no metro trains were curtailed.
"A full complement of 4,157 train trips were run on 10th October as per the schedule across the network," he said.
However, what the Delhi Metro did was close 45 out of 303 stations across the Metro network, accounting for only 15 percent of the entire network, he submitted.
The Bench said that this argument will need greater clarity since closure of metro stations in the middle of a particular network/line could be an issue.
"The thing is, initially you proposed a closure of 57 stations. Then pursuant to our order, 45 stations were closed down. We would like you to indicate what was the status of these 45 stations. So understand, let us say your 113 stations are on a linear plane, where 20 stations at one end and 20 stations at the other end are open, but in the middle the entire access is closed. We have to examine that issue. So when you give your counter or your compliance, please show on a map which stations were open and what were the stations which were closed, which would be relevant for our understanding of the accessibility and the nature of regulation," Justice Bagchi said.
"Today, all Metro stations are open?" the Court asked.
"All are open," said SG Mehta.
The SG also said that internet service has been restored.
He further assured the Court that lawyers, journalists and others would not be obstructed in discharging their professional duties.
He also said that members of the Bar should not say they have lost faith in the system.
"Henceforth, no responsible member of the Bar would publicly say that I have lost faith in the system," the SG stated.
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