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Anti-CAA protests: When these courts showed judicial conscience

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By Vikas Bhadauria

Soon after the protests against the Citizenship Amendment Act spiralled across the country and activists, political parties, as well as student organisations, approached the Supreme Court challenging the contentious law’s constitutionality, Chief Justice of India SA Bobde refused an urgent hearing saying the top court would only hear the petitions once the “violence stopped”.

The observation drew criticism with many reading it as some sort of a warning that good behaviour is a prerequisite for justice.

Some even sneered at the Supreme Court’s “lackadaisical approach” towards the issue and questioned its role as the guardian of the constitution and fundamental rights of the citizens.

In December, two days after the police barged into Delhi’s Jamia Millia Islamia University and Aligarh Muslim University in Uttar Pradesh, several students approached the Supreme Court for seeking an investigation into alleged police excesses.

The court showed reluctance to interfere in the matter and even said that one doesn’t get a right to riot just because one is a student.

However, high courts in several states have been lauded for taking a somewhat liberal view. The Karnataka, Madras and Guwahati high courts refused to be mute spectators. The judges not only urgently heard pleas, but also pulled up the police for absurd charges made against protesters and questioned the state governments on a host of issues, including frequent internet shutdowns and using Section 144 as tools to suppress dissent.

On December 19, the Guwahati High Court ruled not only in favour of freedom of speech and expression but also on the side of rule of law when it asked the state government to restore mobile internet services suspended after protests erupted in the state.

The court ruled that the initial justification for suspending mobile internet in the city on December 11 was no longer available. A day later, the High Court also refused to entertain review petitions against the order restoring internet services.

Unlike the Supreme Court, which refused to restore internet services in Jammu and Kashmir, the Gauhati High Court refused to buy sweeping claims of the government and directed restoration of the mobile Internet service in the state.

The court said that the advancement of science and technology, mobile internet services now play a major role in day-to-day lives of people and shutdown of the mobile internet service virtually amounts to bringing life to a grinding halt.

The same day, the Allahabad High Court directed the National Human Rights Commission (NHRC) to conduct a probe into state’s disproportionate and excess use of power at the Aligarh Muslim University (AMU) campus on December 14-15.

Earlier, the court had ordered the District Magistrate to provide medical assistance to those injured in the violence.

After Lucknow-based lawyer and human rights activist, Rihai Manch Mohammad Shoaib was detained during an anti-CAA protest, the Allahabad High Court directed the police to produce the arrest memo as mandated by Cr.PC.

The court also ordered the UP government to produce documents to show that Shoaib was medically examined after the arrest.

Last month, a sessions court in West Uttar Pradesh’s Bijnor district granted bail to 48 people out of 83 accused by the state of rioting, arson, attempt to murder, and vandalism during protests over CAA.

The court grilled the UP police for “shoddy investigation” and bizarre charges against protesters. The judge asked the police why no evidence was submitted before the court that showed the mob indulged in arson and destroyed private vehicles.

The judge also dismissed their claim that the mob fired at the police injuring 13 of them.

“According to the case diary, bullet cases were recovered from the spot, but the prosecution did not present any proof that could show which accused from among the crowd opened fire. According to the prosecution, no policeman or any other person got bullet injuries, nor have they produced any firearm,” the judge said.

Qazi Sabih Ur Rahman, a Lucknow-based lawyer, has taken up many cases pro bono to help those in jail on various charges. He managed to get 50 people out, but many more are still in jail without any legal representation. He says that it was possible because the courts in Lucknow have been sensitive and showed urgency in dispensing justice.

“In one of the bail hearings when the judge asked the police to show evidence against a protester, the police said they don’t have any as smoke billowing from tear gas and burning vehicles made it difficult for them to identify them or take their photos,” said Rahman.

He added, “The police used delay tactics, but the judges, the bar association, and the legal fraternity were kind and cooperative that government couldn’t succeed in its hidden agenda.”

The Sensitive South

On December 20, the Karnataka High Court slammed the BJP-led government for forcing Section 144 in various parts of the state.

“Are you going to ban every protest? How can you cancel permission that was previously granted after due course of the process was followed?” Chief Justice Abhay Shreeniwas Oka asked the state.

“Can the state proceed on the assumption that every protest will become violent? Can an author or artist not hold a peaceful protest if he disagrees with any decision of the government,” the judge asked.

In another southern state, the Madras High Court held a special sitting on Sunday evening to hear pleas opposing the DMK’s proposed rally by Tamil Nadu’s opposition parties against the CAA. The court refused to halt the rally by asserting that “in a democratic country, a peaceful demonstration cannot be curbed, as it is the backbone of the democratic setup”.

The National Capital

But Delhi courts, including the High Court, in sync with the top court, showed reluctance to provide protection to students and protesters against police brutality.

When the police entered the Jamia campus without permission and teargassed students on December 15, two days later the High Court deferred the hearing for January. The next hearing is now scheduled for April 29.

Ninety-three students had given cognizable complaints, and their plight was also captured on CCTV cameras, but none of their complaints has till now been converted into FIRs.

The court instead ordered an enquiry committee to look into the incident when cries of “shame shame” were raised in the courtroom after the court deferred the hearing for the first time.

On December 24, the Delhi High Court had even refused to entertain a petition filed against mobile services shutdown in parts of the national capital, saying the ban was no longer in place.

Following the violence in Delhi’s Daryaganj on December 20, the Delhi police arrested 16 people, including Bhim Army chief Chandrashekar Azad and filed cases under several sections of the Indian Penal Code, including for rioting.

A metropolitan magistrate at the Tis Hazari court not only sent Azad to 14 days judicial custody, but also decided to hold in-camera proceedings, denying the media access to his bail hearing.

In another hearing, a magistrate denied bail to 15 others citing the seriousness of charges against them, stating that such kind of incidents create panic in the society.

However, the Additional Sessions Judge Kamini Lau granted bail to Azad and upheld his constitutional right to protest.

Additional Sessions Judge Sanjeev Kumar Malhotra, while granting relief to 12 people arrested in connection with violence in Seemapuri area of northeast Delhi, also imposed an unusual condition. The bail order asked the accused to appear before the Seemapuri police on January 19, where the Investigating Officer/Station House Officer shall remove their doubts with respect to CAA.

But are the SHOs capable of doing what the sessions court judge ordered, protesters asked.


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