In a notable judgment, the Bombay High Court (Aurangabad bench) has quashed an order passed under Section 144 of the Code of Criminal Procedure to prohibit protests and demonstrations in the wake of country wide agitation against the Citizenship Amendment Act.

A division bench comprising Justice TV Nalawade and Justice MG Sewlikar gave the verdict in a petition filed by one Iftekhar Zakee Shaikh, whose request to hold peaceful demonstrations at old Idgah Maidan at Majalgaon, District Beed was declined citing operation of a Section 144 order passed by Additional District Magistrate Beed.

The court noted that even though the impugned Section 144 order, on the face of it, was passed to curb multiple agitations, the real purpose behind it was to silence the anti-CAA protesters. The order had even prevented sloganeering, singing, beating drums also.

"It can be said that though the order on face appears to be against everybody, in reality the order is against persons who want to agitate, to protest against CAA. At present such agitations are going on everywhere and there was no whisper of agitations of other nature in this region. Thus, it can be said that there was no fairness and the order was not made honestly," the court observed.

The Court observed that persons who oppose the CAA cannot be termed as traitors or anti-nationals, and that their right for peaceful protests must be considered.

Can't be labelled traitors or ant-nationals

"This Court wants to express that such persons cannot be called as traitors, anti-nationals only because they want to oppose one law. It will be act of protest and only against the Government for the reason of CAA", said the judgment delivered on February 13.

The judges recalled that Indian Independence was won by protests against the British rule. In this connection, the Court said "It can be said that it is unfortunate but the people are required to agitate against their own Government now but only on that ground the agitation cannot be suppressed".

If the persons agitating believe that it is against the 'equality' provided under Article 14, they have the right to express their feelings as provided under Article 19 of the Constitution of India, the court said.

The court further opined that it was duty bound to ensure that the citizens' right to agitate is upheld and said that it did not have the jurisdiction to decide whether the reason behind holding the protest was valid, it being a matter of belief.

"We are a democratic republic country and our constitution has given us rule of law and not rule of majority. When such act is made, some people may be of a particular religion like Muslims may feel that it is against their interest and such act needs to be opposed. It is a matter of their perception and belief and the Court cannot go into the merits of that perception or belief. The Courts are bound to see whether these persons have right to agitate, oppose the law. If the Court finds that it is part of their fundamental right, it is not open to the Court to ascertain whether the exercise of such right will create law and order problem."

Bureaucracy must be sensitized about human rights

On this note, the court said that the officers from bureaucracy, who are vested with powers to maintain law and order, need to be sensitized by imparting proper training on human rights, incorporated as fundamental rights under the Constitution.

"It is the dissent of people against the act made by the Government and the bureaucracy needs to be sensitive when it exercises powers given by law. Unfortunately, many laws which ought to have been scrapped after getting freedom are continued and the bureaucracy is exercising the powers given under those laws and now against the citizens of free India. The bureaucracy needs to keep in mind that when the citizens who believe that particular act is an attack on their rights which were achieved by freedom struggle and when it is against the provisions of constitution which people have given to themselves, they are bound to defend that right. If they are not allowed to do so, the possibility of use of force is always there and the result will be violence, chaos, disorder and ultimately the danger to the unity of this country."

"This Court is observing with all possible seriousness that officers from bureaucracy who are vested with powers of aforesaid nature need to be sensitized by giving them proper training on human rights which are incorporated as fundamental rights in the constitution".

Before parting, the court also appreciated that protesters belonging to all the communities and faiths were unanimously raising their voices against what they "believed" was an encroachment upon their rights.



"Many persons of all the religion and all the communities are agitating to oppose the aforesaid act. In preamble there is a mention of fraternity. The circumstance that the persons of other communities, religions are supporting the minority community show that we have achieved fraternity to great extent. Doing something against this will hurt the fraternity and will create danger to the unity of the country," the order read.

On Thursday, the Karnataka High Court had held that the Section 144 order imposed in Bengaluru in December to prevent CAA protests was illegal.

Case Details: Case Title: Iftekhar Zakee Shaikh v. State of Maharashtra & Ors. Case No.: Crl WP No. 223/2020 Quorum: Justice TV Nalawade and Justice MG Sewlikar Appearance: Advocate Salunke Sudarshan (for Petitioner); APP RV Dasalkar (for State)

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