The Karnataka High Court on Thursday said the imposition of prohibitory orders in Bengaluru on December 18 ahead of protests against the Citizenship Amendment Act was illegal and “cannot stand the scrutiny of law”, Bar and Bench reported.
The Bharatiya Janata Party-led government had banned gatherings in the city and other parts of the state till December 21 midnight. At the time, state Home Minister Basavaraj Bommai said the orders imposed under Section 144 of the Code of Criminal Procedure were “a precautionary measure” since the government did not want any violence. The orders prohibit the assembly of five or more people.
A bench headed by Chief Justice Abhay S Oka asked state government counsel Prabhuling Navadgi how the permission to cancel protests was issued overnight. “Can a sweeping order under Section 144 cancel an already granted permission?” the judge asked. “Can state go under the assumption that every protest will disturb the peace?”
The court said while it was not concerned about protests, the government’s decision-making process curtailed the fundamental rights, Live Law reported. “It is indeed a preventive measure,” the court added. “The preventive measure has effect of curtailing fundamental rights of citizens.”
Navadgi told the court that it was the duty of the state to take preventive measures to maintain law and order. “The police commissioner based on intelligence inputs from different quarters and after he was satisfied that such order was necessary as possibility of anti social elements participating in the peaceful protest,” he added.
The lawyer also referred to “uncontrollable situation” in Mangaluru, where two people were killed in police firing on December 19 during protests against the citizenship law. “Reports were also there that people from Kerala have infiltrated into the state,” Navadgi claimed. “What is the final concern of the state is safety of public property. The chief minister has held meeting with members of the Muslim and Christian Community and also appealed to citizens to maintain peace.”
The court made the observations while hearing petitions filed by Congress Rajya Sabha MP Rajeev Gowda, Congress MLA Sowmya Reddy and some other city residents.
Senior advocate Ravi Verma Kumar, who represented one of the petitioners, argued that the police can only regulate rallies and not prohibit protests since it is a fundamental right. “The order passed is arbitrary and ex-facie illegal as there is no formation of opinion,” he added.
The court said the petitions can be taken up for preliminary hearing. “Issue whether permission granted can be revoked by passing order under Section 144 and that also without giving pre-post decision hearing will have to be gone into,” it added.
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