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Supreme Court, Madras hc, Calcutta HC, karnataka hc, CAA protests
Supreme Court, Madras hc, Calcutta HC, karnataka hc, CAA protests
Litigation Columns

Citizenship Amendment Act and its fallout: How have the courts responded so far?

Meera Emmanuel

Over the past couple of weeks, India has been witnessing a wave of protests against the Citizenship (Amendment) Act, 2019.

Inevitably, Indian courts have been called upon to decide various issues arising out of the anti-CAA protests, as well as the constitutionality of the Act itself.

The pleas filed before courts across the country - right from the Supreme Court to the lower courts - range from appeals for protection from the State to restricting protests sans State permission.

Though we are sure to hear more from courts on the issue in the coming days, here's an overview of how the courts have treated such matters so far.

Violence in Universities: Supreme Court assures that appropriate inquiries will be made by jurisdictional courts

The first cases connected to the Citizenship Amendment Act controversy heard by the courts concerned police violence at the campuses of Jamia Milia Islamia (Jamia) and the Aligarh Muslim University (AMU).

Petitions raising various concerns over the violence at the universities were first presented to the Supreme Court.

The Bench of Chief Justice SA Bobde and Justices BR Gavai and Surya Kant was, however, reluctant to hear the matter and opined that the appropriate forum for the pleas would be their jurisdictional High Courts.

Responding to a prayer for the appointment of an inquiry committee, the Bench observed,

"Having regard to the nature of the matter and dispute and the vast area over which the matter is spread, we do not think it is feasible to appoint one committee for this...”

The Court proceeded to assure the petitioners that once the matter is presented to the concerned jurisdictional courts, those courts may then take a call on the constitution of an inquiry committee.

A Bench led by CJI SA Bobde heard the Jamia violence matters
A Bench led by CJI SA Bobde heard the Jamia violence matters

“… we are confident that appropriate inquiries will be made.”

Supreme Court

Shame! go the lawyers

When petitions concerning the violence at Jamia were finally taken up by the Delhi High Court, however, the Bench of Chief Justice DN Patel and C Hari Shankar merely issued notice in the matter.

As the Bench rose, lawyers appearing for the petitioners pressed for interim protection for the students. However, when it became apparent that the High Court would not be granting any interim relief, lawyers in the court erupted in cries of “Shame!” as the judges left the Court.

This episode itself became the subject of controversy when the Court was later urged by other lawyers to initiate contempt proceedings against those lawyers who joined in on the cries of dejection. Chief Justice Patel, in turn, stated that the matter will be taken up by a separate committee.

In the meanwhile, the Jamia case itself was listed to be taken up next by the Delhi High Court on February 4, next year.

Allahabad High Court orders provision of medical care

Similar pleas before the Allahabad High Court, regarding the police violence in AMU, prompted the Bench of Chief Justice Govind Mathur and Justice Vivek Varma to order the District Magistrate to ensure the provision of medical care to any AMU students who were injured amidst the melee.

Further, in contrast to the date given for the next hearing by the Delhi High Court, the Allahabad High Court decided to schedule the next hearing in the case immediately after the winter break, on January 2, 2020.

The State has also been asked to respond in the matter.

Can sweeping orders under Section 144, CrPC be passed? Karnataka HC comes out in support of civil liberty to protest

As protests for and against the Citizenship Amendment Act gained momentum, the incidents of violence reported in various states also grew. Several state governments responded by passing prohibitory orders under Section 144 of the Code of Criminal Procedure, citing maintenance of public order.

Such an order was also imposed in Bangalore on December 18, prompting a challenging in the Karnataka High Court. The challenge was heard a day after citizens took to the streets in protest, defying the state’s directive against public rallies.

The High Court, in turn, raised eyebrows over whether the Section 144, CrPC order was warranted.

Chief Justice Oka of the Karnataka HC questioned the Section 144 order
Chief Justice Oka of the Karnataka HC questioned the Section 144 order

"When permission for carrying out protests was given to certain organisations, then how can it be cancelled overnight? Can a sweeping order under Section 144 cancel an already granted permission?"

Karnataka High Court

Although the State submitted that the order was only imposed to ensure public safety and on the basis of intelligence reports, the High Court pointed out,

But you can always regulate it. We are concerned with the protection of liberties under the Constitution …This preventive measure curtails the rights of people.”

The Bench headed by Chief Justice AS Oka eventually decided that the High Court would look into the legality of the Section 144 order passed.

Peaceful demonstrations are the backbone of democracy, Madras High Court

Extraordinary circumstances also led the Madras High Court to conduct a special hearing last Sunday and reiterate that peaceful protests cannot be curbed in a democracy.

The Bench of Justices S Vaidyanathan and PT Asha assembled on Sunday evening after petitions were filed challenging anti-CAA protests led by opposition parties in Tamil Nadu scheduled for Monday.

The State informed the Court that the police had denied permission for the conduct of the protests since none of the organising parties intimated that they would be expressly liable for any violence that may follow amidst the protests.

In view of this concern, the Bench directed that the police may monitor the protests, including by the use of drones, so that responsibility may be appropriately fixed if any violence ensues amidst the protests.

Pertinently, the Bench declined to stall the conduct of the rally, observing that peaceful demonstrations cannot be prevented.

A Bench headed by Justice S Vaidyanathan opined that peaceful demonstrations cannot be prevented.
A Bench headed by Justice S Vaidyanathan opined that peaceful demonstrations cannot be prevented.

"In a democratic country, a peaceful demonstration cannot be prevented, as it is the backbone of the democratic set up."

Madras High Court

Detention of minors a flagrant violation of law, CMM reiterates

Widespread protests in the street also led to a spate of arrests. Severe violence and police backlash was reported in various parts of the country, including the capital.

In Daryaganj, it was also reported that the police detained women and minors at night, while locking out access to lawyers and doctors.

The Chief Metropolitan Magistrate for Central Delhi, Arul Varma, had to intervene at midnight following December 20, before lawyers were allowed to meet detained civilians and the police released minors from their custody.

Pertinently, CMM Varma took critical note of the brazen violation of the law in detaining the minors in the first place.

"Detention of minor in a police station is a flagrant violation of law. The law is well settled in this regard.”

CMM Arul Varma

Bail becomes a closed door affair

Subsequent protests led by Bhim Army Chief Chandra Shekhar Azad saw the arrest of sixteen persons including Azad by the Delhi Police. Azad was eventually denied bail and remanded to judicial custody for a 14-day period.

Notably, his bail proceedings were held in-camera. Azad was not produced before the duty magistrate, Arjinder Kaur, along with the other arrested persons. After ordering a two day remand for the others, Judge Kaur ordered that Azad’s proceedings would be held in camera, despite objection by Azad’s counsel and without offering any express reasons for the same in the order passed to this effect.

"The proceedings shall take place in Camera."

Duty Magistrate, Arjinder Kaur

On behalf of the other fifteen arrested, submissions were made that they had been illegally picked up by the police when they went to attend prayers at the Jama Masjid.

The police, however, submitted that the protests from the Jama Masjid to Delhi Gate constituted an unlawful assembly and turned unruly. A two day judicial remand initially ordered against these fifteen persons was later extended to 14 days after their bail pleas were rejected by Metropolitan Magistrate Kapil Kumar.

Gauhati High Court restores internet in Assam

The Gauhati HC ordered the restoration of mobile and internet services
The Gauhati HC ordered the restoration of mobile and internet services

In the meanwhile, the Gauhati High Court's intervention ensured that internet and mobile data services were restored in Assam, after the state government suspended the same over protests against the CAA.

On December 19, the Bench of Justices Manojit Bhuyan and Soumitra Saikia found that the state could not produce any material to satisfy the Court that there were violent incidents that warranted the shutdown of internet services.

Therefore, the Court ordered the State to restore internet by 5 pm the same day, by way of an interim order.

In the interest of caution, however, the Bench, also added,

"Needless to say, it would be open to the State authority to take steps to curb and stop dissemination of explosive messages, videos on various social media platforms which may have a tendency to incite violence and disruptions affecting public safety on cogent and justifiable grounds and materials."

Can Anti-CAA publications be issued at state costs? High Court tells West Bengal Government to stop advertising against CAA

The first among the state governments to register protest against the 2019 Citizenship Amendment Act was the West Bengal government. Chief Minster Mamta Banerjee was quick to condemn the passage of the CAA and the likely introduction of the NRC.

The counter-campaign efforts were, however, partially curbed by the Calcutta High Court, when it directed the government to pull down any anti-CAA publications issued by the government online. The interim order states,

“… we hereby direct that the said publication be removed from all Government portals and facebook sites of government institutions and departments for the time being.

The larger question of whether such publications could be issued at the expense of state funds was left open.

No stay on Citizenship Amendment Act, says Supreme Court

The Supreme Court is yet to hear the challenge to the constitutionality of the Citizenship Amendment Act, 2019 itself. Earlier this month, the Court issued notice in 60 petitions filed in the matter.

The Bench of Chief Justice of India SA Bobde and Justices BR Gavai and Surya Kant declined to issue a stay on the operation of the Act in the meanwhile, after it was informed that rules and guidelines under the Act were yet to be framed. The matter is scheduled to be hear after the winter break, in January next year.

In the meanwhile, another petition was filed more recently, defending the constitutionality of the Citizenship Amendment Act, 2019 and calling for its aggressive implementation in various states. The plea also seeks action against the spread of misinformation regarding the same by politicians and the media. It remains to be seen when and how the Supreme Court will respond to this plea.