Don’t label anti-CAA protesters ‘traitors’, people bound to defend rights in a democracy: Bombay HC

Drawing on the experiences of Indians non-violently fighting unjust laws under a colonial regime during India’s struggle for Independence, the Court said that an agitation cannot be suppressed only on the ground that people are agitating against the government

Bombay HC

Setting aside an order by the Additional District Magistrate against allowing protests in Maharashtra’s Beed, a division bench of the Aurangabad Bench of the Bombay High Court said that those protesting against the Citizenship Amendment Act (CAA) “cannot be called traitors, anti-nationals only because they want to oppose one law”. The order was passed by justices MG Sewlikar and TV Nalawade on February 13, 2020 is an unequivocal victory for Article 19(1) which is the Right to Freedom of Assembly. It is this cardinal, fundamental principle that is guides people’s and citizens right to protest in a democracy.

The Bombay HC (Aurangabad bench) said that an agitation cannot be suppressed only on the ground that people are agitating against the government. It also asked the bureaucracy to “keep in mind” that when people believe that a “particular Act is an attack on their rights… they are bound to defend that right”. The judgement clearly underlined that it is not for the Court “to ascertain whether the exercise of such right will create a law and order problem”.

Granting relief to petitioners who were seeking permission to sit at a location for an indefinite agitation, the Court noted they had given an undertaking that no slogans would be raised against the country, any religion, or the unity and integrity of the nation.  “The submissions made show that there will be no question of disobedience of provisions of CAA by such agitation. This Court is expected to consider the right of such persons to start agitation in a peaceful way. 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 an act of protest and only against the government for the reason of CAA,” the division bench ruled on Thursday.

The judgement came was delivered on a petition filed by a 45-year-old Beed resident, Iftekhar Shaikh, challenging an order by a police inspector last month refusing permission for an agitation based on an order by the additional district magistrate. The Court said the order by the magistrate refers to a letter by the District SP on agitations by political parties for many causes, including against the CAA. The SP had written that such agitations could lead to a law and order problem. The order said that the agitations include those by farmers due to damaged crops, others due to increase in price of commodities, and against the CAA.

The HC held that one of the clauses of the order prevented “sloganeering, singing, beating drums”. “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 the 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 said.

It said the Constitutional validity of the CAA was being heard in the Supreme Court and hence it would not comment on it. “When we are considering a proceeding like the present one, we must keep in mind that we are a democratic republic country and our Constitution has given us rule of law and not rule of majority. When such an Act is made, some people, maybe 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 Court said.

It said courts had to examine whether these persons have the right to agitate and oppose a 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. That is the problem of a political government. In such cases, it is the duty of the Government to approach such persons, have talks with them and try to convince them,” the Court said.

It said the authorities cannot be of the perception that only one particular community or religion had an interest in opposing the law, stating that their own order said members from all communities were agitating. “…many persons of all the communities may feel that it is against the interest of mankind, humanity or basic human values. We need to remember the Constitutional and legal history when we consider the provisions of the Constitution,” it said.

Referring to the freedom struggle and the agitation against the British led by Mahatma Gandhi, including the Khilafat Movement, the Court said the movement was in solidarity with and support to the cause of Muslims of another country, even though no Indian Muslims were affected in seeking to preserve the authority of the Ottoman Sultan.

“India got freedom due to agitations which were non-violent and this path of non-violence is followed by the people of this country till this date. We are fortunate that most of the people of this country still believe in non-violence. In the present matter also, the petitioners and companions want to agitate peacefully to show their protest,” the Court said.

It said that the bureaucracy needs to be “sensitive” in matters of dissent by giving proper training on human rights. “The bureaucracy needs to keep in mind that when citizens who believe that a particular Act is an attack on their rights which were achieved by the freedom struggle, and when it is against the provisions of the 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,” the Court said.

It said that people from all religions supporting the minority community shows that “we have achieved fraternity to a great extent”. It said that the grounds put forward by district authorities that the agitation could lead to a possible problem of law and order cannot be considered by the court, “particularly for reason that it involves the exercise of fundamental right”.

Citizens across the country have been asserting this fundamental right to protest over the past two and a half months ever since the Modi 2.0 government passed the controversial Citizenship Amendment Act (CAA), 2019 in Parliament on December 9 and 11. This law coupled with the now to be implemented National Population Register (NPR) and National Register of Citizens (NRC) threatens a vast section of Indians who may be arbitrarily excluded from that right to have rights: citizenship!

The authorities submitted in court that permission will be given to those who want to agitate peacefully.

The entire judgement of the Bombay HC may be read here:






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