As nationwide protests against India's amended citizenship laws continue, protesters in BJP-ruled Gujarat are facing major difficulties in holding peaceful rallies in Ahmedabad. Citizens across the city are trying to tackle the arbitrary use of Section 144 of Criminal Procedure Code (CRPC), as Ahmedabad Police routinely deny permission to hold such marches, leading to an infringement of their fundamental rights to freedom of speech and expression.
Section 144 of the Criminal Procedure Code (CrPC) of 1973 authorises the District Magistrate of any state or territory to issue an order to prohibit the assembly of four or more people in an area. As per law, any order that is imposed under this section is anticipatory in nature, which implies that certain actions are restricted even before they actually occur. The law is applicable whenever as per the opinion of the magistrate ‘there is sufficient ground for proceeding under this section’.
The mere anticipation of a threat to public order is not a valid ground alone to use Section 144, as the provision is in this manner of curbs the fundamental rights of expression and assembly. The restriction has to be reasonable in nature and the requirement of an actual threat to public order and not just a perceived threat, in the near future.
But this law shares a chequered history of being arbitrarily used by police and state governments to stifle dissent. One such state is Gujarat, where as a precautionary measure, the Gujarat Police had imposed Section 144 of IPC and Section 37 of Gujarat Police Act (GPA) in the city of Ahmedabad continuously since April 2016, according to a petition filed in the Gujarat High Court.
The petition states that the Ahmedabad Police has been renewing orders under these two sections continuously since 2016. Almost 64 notification were issued, in the past three years according to the Ahmedabad Police website. The petition additionally urges the high court to quash orders dated 10 and 13 December, challenging the blanket imposition of Section 144, read alongside the Section 37 of GPA in the entire city.
The petitioners in the matter are IIM Ahmedabad professors Navdeep Mathur and Ankur Sarin, Ahmedabad University professor Raghavan Rangarajan and businesspersons Archana Shah and Sanjiv Shah.
The petitioners' main contention was the continuous issuance of such orders, as the orders did not mention or identify any “imminent threat to public order and tranquility”, as required to by the provision to impose Section 144 in a given area. As per the law, it is a prerequisite that public announcements be made through newspapers, radio and posters/notices at public places
According to Suhair Killiyath, an academic associate at IIM-Ahmedabad, the police had not issued any public notifications or announced in any public sphere about the law being imposed in the city. Killiyath, who is a part of an independent group that has been organising protests across the city through word of mouth and social media said that the police had detained protesters on every single occasion. “I have been detained four times. All four occasions were at the venue of anti-CAA protests which we were given verbal permission for initially, but hours before the slated time of protest, the police informed us that the permission was denied.”
Another 24-year-old researcher at Gujarat University, along with Killiyath and another student had tried to hold peaceful protests, with just the three of them. Their three-person-strong silent demonstration was ironically held alongside a pro-CAA rally on 24 December, in which Gujarat chief minister Vijay Rupani was also present.
"All three of us were holding placards, calling for allowance of peaceful protests, repealing of Section 144, in support of free speech. But the moment we got to the venue, we were quickly whisked away by the police. They claimed it was preventive detention to protect us from the people in the pro-CAA rally,” the 24-year-old researcher who did not wish to be named told Firstpost.
According to Swati Goswami, a freelance content writer, who is also a part of the organizing team, accused the police of manhandling some protesters during another march on 29 December. "The police had fabricated lies to scare two women applicants, including myself. They accused protestors of being abusive when they were the one using abusive slurs towards us," the 34-year-old alleged.
She further added that the police had routinely denied permission to hold these protests either under Section 144 of CRPC or sections 67, 68 and 69 of the Gujarat Police Act which dealt with executive powers and duties of the police to deny these permissions to regulate traffic control, to restrain, remove gatherings to regulate public order.
According to these organisers, concerned academicians, students, and professionals had tried to organise peaceful rallies on multiple occasions across the city on 16, 17, 18 and 29 December. The police only granted them permission for 17 December to hold a sit-in protest outside Sabarmati Ashram.
In the petition filed in the Gujarat High Court, the petitioners have pointed out, that orders under Section 144 have been issued continuously with no justification of any imminent threats at each renewal, “as a matter of routine and automatic practice”.
The petition states that the police commissioner of Ahmedabad has been issuing these orders, saying, “it seems that there is a need to maintain public order in [the] city of Ahmedabad”, without giving any justification for its renewal. They argued that the power to issue such notifications lies with the district magistrate, a sub-divisional magistrate or any other executive magistrate and that the police commissioner had no right issuing these renewals.
However, legal experts differ with the petitioners on this count.
Ashok P Shahani, an advocate in the Supreme Court, told Firstpost, “In case of an emergency you cannot wait for the actual court (s) to hear you first and then pass an order. These things take time, and so in order to save time police officers are given such powers as enumerated under the criminal procedure code.” This is one of the reasons why such vast powers are granted to the Executive Magistrate under the CRPC, but with certain restrictions.
In the past, in Mazdoor Kisan Shakti Sangathan v Union of India and Anr, Writ Petition (Civil) No. 1153 of 2017 decided on 23rd July 2018, the Supreme Court had held that the power to impose Section 144 was not unconstitutional, although the apex court did recognise the right to protest and directed the government and police to frame guidelines. But in Ahmedabad, the police officials are overlooking the right to protest, leading to arbitrary and discriminatory exercise of such powers.
Ranjit D Shinde, a practising advocate in the Bombay High Court said that any restriction imposed under Section 37 cannot be a “permanent or semi-permanent in nature”. The advocate stated, “A continuous notification of an order under section 37 before the expiry of the tenure of an earlier order is nothing but an arbitrary exercise of power, there cannot be a continuous future apprehension about the danger to public peace. Continuous use of such power imposes unreasonable restriction and thus is violative of Article 19 of the Constitution of India, 1950.”
Bandish Soparkar, an advocate who was a part of the drafting of the petition before the Gujarat High Court, told Firstpost that the Ahmedabad Police had issued 64 notifications alone from 15 April 2016 to 26 November 2019. "There could be orders dating further back but the website has not uploaded it," he added.
The Gujarat High Court advocate further stated that after being detained for taking part in one of the anti-CAA protests, he was told by the police that Section 144 was in place. “I had asked the police for the notification to see if Section 144 was imposed as no prior public announcement had been made, nor was there any public record of it. After they showed me the order, I took a photo of it since it hadn’t been uploaded on their website, which is now a part of the petition,” he said.
The petition thus contended that people were being detained for breaking a law that they did not know was imposed since it does not generally exist. The matter’s next hearing is slated for 9 January 2020.
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Updated Date: Jan 04, 2020 07:26:04 IST