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The Karnataka High Court today held that the prohibitory order passed under Section 144 of the Code of Criminal Procedure (CrPC) on December 18 was illegal and does not stand the test of judicial scrutiny laid down by the Apex Court.
A Division Bench of Chief Justice Abhay Sreeniwas Oka and Justice Hemant Chandangoudar held that,
"Unfortunately, in the present case, there is no indication of an independent mind by the District Magistrate while passing the order… Section 144 order does not stand the test laid down by the Supreme Court in the case of Anuradha Bhasin and Ramlila Maidan."
Karnataka High Court
Arguments made by the Petitioners
Counsel for the Petitioner in the matter, mainly contended that formation of opinion, a pre-requisite to impose Section 144, is not at all reflected in the order passed by the District Magistrate. He further stated that recourse to Section 144(1) can be taken only after the authority formulates an opinion.
Another contention made by the petitioners was that the material facts were not set out in the order. Adding on, the Counsel stated that the authority imposing Section 144 must list out the material facts so that judicial scrutiny is possible. Further, it was stated that the Section 144 order that was imposed was so drastic that it cancelled all previously allowed permissions to conduct rallies and protests.
Apart from the absence of facts and reasons in the order, it was argued that the District Magistrate simply acceded to the requests made by the Deputy Commissioners. The order does not reflect the opinion of the Magistrate, and therefore, this goes on to show the non-application of mind, Petitioners Counsel argued.
Moreover, the petitioners stated that reasons to support a Section 144 order cannot be permitted by filing affidavits or via additional grounds.
Arguments of the Respondents (State)
Advocate General Prabhuling Navadgi mainly contended that the action of the District Magistrate was based on the gravity and seriousness of the situation. The situation was so serious that it could have affected the law and order of the State, he pointed out.
Adding on, AG Navadgi contended that the Commissioner had imposed Section 144 based on the letters of the jurisdictional Deputy Commissioners. He submitted that there was credible information stating that “several student and political organizations were posting provocative statements, which resulted in a spur of sudden protests being conducted without prior permission”.
In this case, the Magistrate had to believe the correctness of the letters sent by the Deputy Commissioners, Navadgi said.
He further stated that there was a serious apprehension that “some people may take law into their own hands”. He also submitted that the material facts were already set out in the order.
Moreover, he stated that the Director General (DG) and the Inspector General (IG) of Police had also expressed their views that due to the protests and bandhs, there is an apprehension of disturbance of law and order. Therefore, Navadgi submitted that there was nothing wrong in extending Section 144 to the entire city of Bengaluru, and that it is “impossible to find fault with the District Magistrate’s approach".
He further stated,
“This Court cannot go into the correctness of the decision or the adequacy of reasons.”
What the High Court held
The High Court stated that “there cannot be any second opinion that the State is responsible for maintaining law and order”. Therefore, if the situation exists and power under Section 144(1) is properly implemented, the District Magistrate will be well within its powers to curtail the rights of the people, the Court opined.
The Court further stated that it would only look into the legality of the order, i.e., it would only look into the decision-making process and not the decision.
The Court further noted that, as held in the case of Anuradha Bhasin, formation of opinion is mandatory before issuing an order under Section 144. Moreover, a “careful enquiry” is also contemplated, the Court held.
"On this aspect, the statement of objections is not affirmed by the Commissioner, but by the Assistant Commissioner of Police who has no personal knowledge of the incident. There is no remote indication that an enquiry was made. Even the Advocate General submits that no enquiry was made….. No affidavit was filed by the District Magistrate. No facts were set out in the order. As in the case of Ram Lila Maidan, material facts and reasons are to be recorded. It is true that it cannot be stretched but a complete absence of reasons is not permissible."
Karnataka High Court
The Court further stated that when the Commissioner is passing an order under Section 144, he acts as a District Magistrate and not as a police officer. Therefore, he cannot rely on the opinions of the DG and IG, who are superior to him in the police machinery.
“The effect is to take away fundamental rights of the people. Therefore, subject to the satisfaction of the District Magistrate, a formation of opinion if necessary. The District Magistrate cannot rely on the opinion of his senior officers."
Therefore, in light of the above, the High Court held that the Section 144 order that was passed by the District Magistrate was illegal. In this regard, the petition is partly allowed, the Court held.
The Section 144 order was imposed on December 18 last year, in the wake of protests against the Citizenship Amendment Act (CAA).
Two days after the prohibitory order was passed, the High Court had taken up for hearing a challenge filed against the same. On that date, the Court said it would look into the legality of the Section 144 order.
The Bench headed by Chief Justice Abhay S Oka also posed a volley of questions to Advocate General Prabhuling Navadgi, who appeared for the state government. These included:
“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?
Can state go under the assumption that every protest will disturb the peace?"
Petitions were filed in the Karnataka High Court by Rajya Sabha Member of Parliament Rajeev Gowda, Member of the Karnataka Legislative Assembly, Sowmya Reddy and others. The petitions had prayed for quashing of the order passed by the state government on December 18.
During the course of the hearings, the state government agreed to allow fresh applications for permission to conduct protests. The police would then consider these applications and decide them within 3-4 days, Navadgi had submitted before the Court.
After filing its statement of objections to the pleas, the state government on January 8 had averred before the Court that it was consistently respecting the people's right to protest.
It was also argued on that date that the fundamental right to peaceful protest was subject to reasonable restrictions.
AG Navadgi had further argued then that Section 144 only placed temporary restrictions on the fundamental rights of the petitioners in order to ensure the safety of the public.
He had also stated that communications of the Divisional Deputy Commissioners were issued on the basis of various intelligence reports, which indicated that certain antisocial persons and organizations were planning to infiltrate the otherwise peaceful protests.
After hearing the state's objections on January 8, the Court had granted time to the petitioners to file their rejoinder submissions and posted the matter for February 12.