A Case filed by the Mumbai police against 36 people, including activists and lawyers, for protesting at the Gateway of India against the attack on students at Jawaharlal Nehru University (JNU) in New Delhi who were protesting against the discriminatory Citizenship (Amendment) Act in January 2020 has been withdrawn.
Earlier this month, January 2023, the additional chief metropolitan magistrate allowed an application filed on behalf of the state government seeking to withdraw the plea and disposed of the case. The application filed on January 12 through the prosecutor said that the accused persons had committed the alleged act “as a protest without any personal interest or benefits”.
“Further, it is contended that there is no loss of life as well as loss to public property. Therefore, considering the allegations and facts of the case and the alleged act being social and political in nature, the prosecution does not want to proceed with the matter….,” the court said in its order passed on January 12.
The prosecutor, who moved the application, cited the GR dated September 20, 2022 by the state Home department. The GR, issued soon after the Maharashtra Vikas Aghadi (MVA) government had been overturned, said that political parties and social organisations conducted protests in social interest and to raise awareness on various issues.
The GR stated that the government had decided to withdraw cases involving such protests, where chargesheets have been filed on or before March 31, 2022 and which meet certain criteria including the nature of the protest. The application was moved by the prosecutor under Section 321 of the Criminal Procedure Code which gives power to the prosecutor to withdraw a case with consent from the court. The prosecutor said in the plea that he had applied his mind to the facts of the case and came to the conclusion that this was a fit case for withdrawal.
In December 2020, the Colaba police had filed a chargesheet against the 36 persons on charges including unlawful assembly, claiming that they had gathered at the Gateway of India without requisite permission around midnight on January 25 and eventually the protestors’ number rose to 400. The 36 referred to as participants in the protest were charged with Section 143 (member of an unlawful assembly), Section 149 (every member of an unlawful assembly guilty of offence committed in prosecution of common object) of the Indian Penal Code, Section 37 (3) of the Bombay Police Act, 1951. Those named in the chargesheet are lawyers Mihir Desai, Lara Jesani, Lokshahir Sambhaji Bhagat, students and activists, including Suvarna Salve, Bilal Khan and CPI leader Prakash Reddy, among others.
According to officials, as per the GR, a committee comprising the zonal DCP (Zone 1), ACP and the assistant director and public prosecutor, met in November to decide on the cases falling within the GR’s conditions for withdrawal. A total of 44 cases from seven police stations in South Mumbai were then shortlisted and recommended for withdrawal.
Background behind the FIRs
Initially, even while the city was grappling with the Covid-19 pandemic, these cases were proceeded by the Mumbai police and continue to be prosecuted against peaceful protestors who were part of vibrant, peaceful and democratic protests way back in January and February 2020. The criminalization of protestors who were part of these widely reported peaceful protests has been a nationwide phenomenon with Delhi, Uttar Pradesh and Gujarat being the worst.
The passing of the unconstitutional Citizenship Amendment Act, 2019 (CAA) introduced at the behest of the BJP government in December 2019 had led to nationwide protests. In Mumbai, civilians from all sections came forward to protest against the communal and divisive, CAA and the arbitrary process of the All India NRC and NPR sought to be initiated by the Central government which could potentially render scores of citizens of India from the marginalized sections, vulnerable groups and minorities, especially Muslims, Dalits, Adivasis, women, children and the undocumented poor, without citizenship rights. Even the Maharashtra Vikas Aghadi government and the parties in alliance have expressed their concerns about CAA, NPR or NRC on several occasionsand also questioned the Central Government on the information being sought in NPR/NRC, cabinets in several states have passed resolutions against CAA and raised similar objections against NPR/NRC. The Maharashtra governmenthas even instituted a 6-member committee of sitting ministers to review the legislations regarding CAA NPR NRC and submit a report before the Hon’ble Chief Minister.
Since mid-December 2019 to mid-March 2020 i.e. before the Covid-19 pandemic crisis, several peaceful and democratic protests were conducted by citizens in Mumbai in exercise of the fundamental rights to free speech and assembly as recognized by the Indian Constitution against the draconian CAA NPR NRC and violent attacks on civilian protests in different parts of the country during the time. The Mumbai protests have been exemplary and a stellar display of the democratic spirit by the active citizenry of the country. Lakhs of Mumbaikars from different communities joined the protests, which were attended by ex-civil servants, political leaders and sitting ministers, government workers, musicians, film personalities, students, professionals, citizen groups, civil society organisations and civilians from different sectors. No incidence of violence, incitement or disruption was reported at any of these peaceful protests, and instead the satyagrahi protestors displayed their commitment to the nation and the Indian Constitution, holding the Constitution in one hand and the Indian national flag in the other.
However inspite of this, the Mumbai Police selectively filed FIRs against only a few known activists, lawyers, journalists and students in respect of several of these peaceful and democratic protests (inspite of thousands of people being participating the same protests). In none of these cases any allegation of violence or incitement of violence has been made and admittedly the protests were all peaceful. The police subsequently filed chargesheets in these cases, which are now going on before the respective Metropolitan Magistrate courts. Police summons in these cases were served upon those named in these cases, in the heat of the pandemic and the civilian have had to face immense harassment due to these proceedings. Details of some of the cases are provided below.
(i) Case No. PS/950/2020 pending before the 3rdMetropolitan Magistrate Court, Esplanade, Mumbai in the matter of State of Maharashtra vs. Feroz Hamaja Mithiborwala & Ors. (FIR No. 7/2020 dated 7th January 2020, Colaba Police Station) – Gateway Protest
In a spontaneous candlelight vigil held at midnight on 5th January 2020 at Gateway of India, thousands of students and civilians alerted by social media and the media attended the public gathering to protest the violent attacks by masked mobs holding rods and sticks in the JNU campus which left at least 23 people from the university injured and admitted to AIIMS and Safdarjung Hospital. The protest was not organized by any group but was a spontaneous response to calls on social media to protest the violence taking place in JNU campus, which took place in the midst of when the CAA NPR NRC protests were going on nationwide.
The violence on students in JNU campus was also publicly condemned by Aditya Thackeray who had demanded that action be taken against the attackers. The Gateway protest was by then state cabinet minister Aditya Thackeray and by eminent personalities in the city including political leaders and sitting ministers from the ruling Maharashtra government, film actors, musicians and students from across the city. No incident of violence or disorder took place and the protest went on peacefully. The Mumbai police co-operated with the satyagrahi protestors and did not close down the protest demonstration. The protest was allowed to continue until the morning of 7th January 2020, whenfew student protestors who were at the site were detained and shifted to Azad Maidan, and the protest was subsequently called off.
Shortly after this, in a shocking move, it was reported that the FIR bearing no. 7/2020 dated January 7, 2020 under Sections 143 and 149 of the IPC and 37(3) and 135 of the Maharashtra Police Act had been filed by Colaba Police Station selectively against 52activists, lawyers, students, academicians selectively and about 300 to 400 unnamed protestors and political leaders, even as tens of thousands of people had reportedly attended the highly covered and publicly telecast protests over a course of 1.5 days. Infact those named in the FIR were not even present on the site when the protest were closed down by the police.Pursuant to the filing of the FIR, several persons were called to Colaba Police Station for recording statement and asked to furnish bail. Subsequently the Colaba Police Station filed its chargesheet in the case against 36 persons on 28th December 2020 and those named in the Final Report have had to obtain bail and appear regularly on dates before the Ld. Metropolitan Magistrate, Esplanade Court. The case is currently pending.
In 2020, during the Covid-19 pandemic, chapter proceedings were also initiated against some of the people who were named, by the Executive Magistrate / ACP, Colaba Police Station in respect of the same FIR, which were subsequently abandoned in 2021.
(ii) Case No. PS/12/2021 pending before the 38thMetropolitan Magistrate Court, Ballad Pier, Mumbai in the matter of State of Maharashtra vs. Salim Hamja Sabuwala & Ors. (FIR no. 4/2020 dated January 7, 2020 MRA Marg Police Station) – Hutatma Chowk protest rally
On January 6, 2020, a protest rally was held from Hutatma Chowk to Gateway (where the civilianprotest was already going on), also in response to the JNU violence. Several students, activists were part of this rally, which went on peacefully and the police also did not stop the same. No incident of violence or disorder took place in this peaceful rally that was joined by eminent personalities. The police at no point of time tried to disperse the protestors and were in fact guiding them. However, following the rally FIRsbearing no. 4/2020 dated 7th January 2020 under Sections 141, 143, 149, 341 and 34 of IPC was filed by MRA Marg Police Station against 31 activists, lawyers, students, academicians selectively and about 200-250 unnamed protestors. The arbitrary nature of the FIRs is also evident from the fact that several persons named in the FIR initially were not even present at the rally. Pursuant to the filing of the FIR, several persons were called to MRA Marg Police Station for recording statements and asked to furnish bail. Subsequently the MRA Marg Police Station filed its chargesheet in the case against 16 persons on January 5, 2021 and those named in the Final Report have had to obtain bail and appear regularly on dates before the Ld. Metropolitan Magistrate, Ballard Pier Court.
In 2020, during the Covid-19 pandemic, chapter proceedings were also initiated against some of the people who were named, by the Executive Magistrate / ACP, MRA Marg Police Station, with surety noticeranging from 1-10 lakhs and in one case to the tune of 50 lakhs. The ACP, MRA Marg Police Station had subsequently closed the chapter proceedings.
(iii) FIR no. 34/2020 dated February 7, 2020, Nagpada Police Station – Mumbai Bagh Protest against CAA-NPR-NRC
FIR bearing no. 34/2020 dated February 7, 2020 had been filed by the Nagpada Police Station in the protests held at Mumbai Bagh against 200 to 300 unidentified women protestors. The protest was organized by the local community and was entirely peaceful and without any untoward incident.
Chapter proceedings were also initiated against few activists selectively in connection with the said FIR and the Mumbai Bagh protests although they are not even named in the FIR, which were subsequently abandoned.
(iv) Following proceedings in connection to CAA-NPR-NRC protests were also initiated by police or are pending –
1. Case No. 324/PS/2020 under sections 37(1), 135 of the Maharashtra Police Act pending before the 5th Metropolitan Magistrate Court at Dadar, Bhoiwada Mumbai – candle light vigil at Veera Kotwal Gardens
A FIR was also filed at Mahim Police Station in connection with a peaceful candle light vigil at Veer Kotwal Gardens, where student protestors who were part of the protest were prevented from leaving and were subsequently detained and taken to the Mahim police station by the police. Following this several persons were summoned before the Bhoiwada Magistrate court to furnish bail. Subsequently a chargesheet has been filed in the case and the matter is pending before the 5th Metropolitan Magistrate Court at Dadar.
2. FIR No. 3/2020 under Sections 37(1), 135 of the Maharashtra Police Act filed by the Marine Drive Police Station – candlelight vigil at Marine Drive
A FIR was also filed at Marine Drive Police Station in connection with a peaceful candle light vigil at Marine Drive in which students and young activists participated and few of them were subsequently detailed and taken to Marine Drive Police Station and also made to furnish bail.
3. Several other police stations have also filed FIRs, including FIR No. 53/2020 (Deonar Police Station), FIR No. 5/2020 (Shivaji Park Police Station) and possibly others in connection with the CAA NPR NRC protests.
The police had claimed in the aforesaid Gateway and Hutatma chowk protest FIRs that the protests took place without police permission and in breach of prohibitory orders under Section 144 of the Criminal Procedure Code, 1973, which are in place in South Mumbai. Apart from this, there is no other allegation against the satyagrahi protestors of illegality and it is not the case of the police that there was any violence, incitement or disorder or any other “crime” at the protests. Infact, the police did not attempt to disperse the satyagrahi protestors but were co-operating with them and guiding them, resulting in peaceful and orderly protests. However, in spite of all the above protests being peaceful and democratic and attended by a large diversity and number of Mumbaikars, the police has initiated the aforesaid criminal cases.
It is pertinent to note here that while tens of thousands of civilians attended these protests, only a few handful activists, students, lawyers and academicians are being selectively prosecuted by the police.Those arraigned in these cases are facing unnecessary harassment, restrictions and criminalization at each stage in their education, career and daily lives, while not having committed a single crime except for believing in democracy and in the values enshrined in the Indian Constitution.
Mumbai city has a tradition of democratic and peaceful protests in exercise of fundamental rights and constitutional freedoms guaranteed to the people under the Indian Constitution. Many protests have taken place in Mumbai to protest violence against women, caste violence, oppressive policies, bills and anti-worker and anti-farmer legislations by the central government and to uphold the constitution and save democracy.
Even in protests that have taken place without police permission, generally protestors are allowed to continue peacefully, and otherwise warned or at the maximum detained by the police briefly without any criminal action. However such action of filing and pursuing criminal cases is not only shocking but completely arbitrary and excessive.
It is ironic that when there are real crimes taking place against civilians daily, the police in Maharashtra and elsewhere were investing its energies on prosecuting and criminalizing students and activists who have infact upheld the values of the Constitution and democratic spirit of the city and the country. This kind of action by the police also goes against the spirit of secularism and commitment to constitutional values that forms part of the minimum programme of the Maharashtra Vikas Aghadi alliance, which is what these protests had sought to protect.
Such criminalization of protests by the police sets a wrong and dangerous precedent of targeting dissenting voices and opposing views, thereby threatening our democracy, which cannot be allowed.
There are hundreds of instances of protests in the period which similarly took place, but were not met with criminal action by the police as is seen in these cases. State Governments in Tamil Nadu, Kerala and others have already, last year, announced withdrawal of the CAA NPR NRC protest FIRs, while High Courts such as Madras High Court have quashed CAA NPR NRC protest FIRs where the protests were similarly peaceful.
The Maharashtra Government had previously honoured its commitment towards the people of the city and closed FIRs against protestors in the Save Aarey protest, Nanar protest, Covid related offences and even all the protest FIRs upto December 31, 2019 (few days before the dates of the above FIRs), in various of its orders passed to the effect.
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