[Note: For News Coverage of the Judgement Kindly Scroll Down to the Bottom of the Press Release]
Press Release : 13th February 2020 : Bangalore
Chief Justice Mr. Abhay Oka and Justice Mr. Hemant Chandangoudar constituting the Principal Bench of the Hon’ble High Court of Karnataka, held today that the order of Bangalore Police Commissioner Mr. Bhaskar Rao, IPS, imposing Section 144 of Criminal Procedure Code across Bangalore during 19-21 December 2019, illegal, as it does not satisfy the test of judicial scrutiny demanded of such orders. The Court issued the order in response to a batch of Public Interest Litigations filed by Prof. M. V. Rajeev Gowda, MP (Rajya Sabha), Soumya Reddy, MLA, Leo F. Saldanha, M. D. Pallavi, Kavitha Lankesh, People’s Union for Civil Liberties (Karnataka) and Prof. Ramdas Rao. (WP 52731/2019 c/w 52718/2019, 52768/2019 and 52738/2019)
These PIL’s were filed challenging the Order of the Police Commissioner, Bengaluru on various grounds including that the order suffered from non-application of mind and arbitrarily restricted the freedom of speech and expression of the Petitioners as guaranteed in the Constitution of India.
Appreciating the gravity of the impact of the Commissioner’s orders on Fundamental Rights of people, the Court in its interim direction issued on 20th December had held:
“7. We must note here that in these petitions which are essentially filed to uphold the fundamental rights of the citizens of conducting protests in a peaceful and lawful manner, we are not concerned with the subject of protest. We are concerned with the decision making process adopted by the State Government while passing a drastic order under Section 144 of Cr.P.C., which undoubtedly, curtails the fundamental rights conferred on citizens under Articles 19 (1)(a) and 19 (1)(b) of Constitution of India. This indeed is a preventive measure. The preventive measure has the effect of depriving the citizens of fundamental rights and therefore, we will have to examine the legality of the decision making process, especially when prima facie, we find that formation of an opinion which is required under sub-section (1) of Section 144 of Cr.P.C. is not reflected from the recitals in the order. Considering the serious allegations of violation of the fundamental rights of the citizens to protest peacefully which is an essential part of any democratic system, it is absolutely necessary that these petitions should be taken up for hearing out of turn at the stage of Preliminary Hearing.
8. The issue whether the permissions granted under the said Regulation Order can be revoked by passing an order under Section 144 of Cr.P.C. and that too, without giving a pre-decisional or post-decisional hearing to the organizations to whom permissions have been granted under the said Regulation Order will have to be gone into.”
And further that:
“13. We make it clear that though the impugned order will come to an end tomorrow (21st December 2019), as the impugned order amounts to deprivation of fundamental rights, this Court will go into the legality and validity of the impugned order.”
Following exhaustive final arguments advanced by all parties on 12/02/2020 and 13/02/2020, the Hon’ble High Court held that the impugned order of the Police Commissioner is illegal, and does not stand the test for exercising such extraordinary power of imposing Sec 144 as laid down by the Hon’ble Supreme Court of India in Anuradha Bhasin vs. Union of India (order dated 10th January 2020 in Writ Petition (CIVIL) NO. 1031 OF 2019)  and Re-Ramlila Maidan Incident Dt … vs Home Secretary And Ors (order dated 23 February, 2012 in Suo Moto Writ Petition (CRL.) NO. 122 OF 2011) .
The High Court also observed that the Commissioner’s order was incurable citing Supreme Court in Mohinder Singh Gill & Anr vs The Chief Election Commissioner (order dated 2nd December 1977, 1978 AIR 851, 1978 SCR (3) 272) :
“The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (1) “Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to effect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.”
Orders are not like old wine becoming better as they grow older”
Senior Counsel Prof. Ravi Varma Kumar advanced exhaustive arguments on behalf of Petitioners and was assisted by Advocates Aarti Mundkur, Maitreyi Krishnan, Sruti Chaganti, Vikas Mahendra, Malavika Prasad, A.S. Vishwajith.
Advocate General Mr. Pabhuling K Navadgi represented the State Government and the Police.
Issued on behalf of Petitioners by
Leo F. Saldanha
Petitioner in WP 52718/2019
For a background to this case, please visit the following link: https://esgindia.org/new/events/media/press-release/pils-challenge-imposition-of-curfew-on-bangalore-preventing-protests-against-caa-nrc/
The PIL (WP 52718/2019) can be downloaded from the following link: https://esgindia.org/new/wp-content/uploads/2019/12/Sec_144_PIL_Kar_HC_WP_52718_2019-PIL.pdf
The Statement of Objection filed by the Government of Karnataka can be downloaded from here.
What was said in the News:
Bar and Bench:
[Breaking] CAA Protests: Section 144 order imposed in Bangalore on December 18 was illegal: Karnataka HC
A Division Bench of Chief Justice Abhay Sreeniwas Oka and Justice Hemant Chandangoudar held that,
“Unfortunately, in the present case, there is no indication of an independent mind by the District Magistrate while passing the order… Section 144 order does not stand the test laid down by the Supreme Court in the case of Anuradha Bhasin and Ramlila Maidan.”– Karnataka High Court
Slapping Section 144 during CAA protests ‘illegal’: Karnataka High Court
Also, making it clear that it has not gone into the grounds on which the prohibitory order was passed, the Bench said even assuming that there were valid reasons for imposing Section 144, the order passed on December 18, 2019, by the DM can’t stand to scrutiny of law in view of Supreme Court’s orders.
Observing that the DM is expected to form an opinion citing reasons in his order for imposing Section 144, the Bench said that in the present instance, the DM has only referred to the recommendations made by eight Deputy Commissioners of Police to invoke Section 144 and ‘there was no indication of independent application of mind by the DM.”
To read what the other news outlets said about the ruling, kindly follow the links below:
The Economic Times: Prohibitory orders illegal: Karnataka HC
Business Standard: CAA protests: Section 144 in Bengaluru was illegal, says Karnataka HC
Deccan Herald: Imposition of Section 144 in Bengaluru illegal: Karnataka HC