1 Year of CAA: How High Courts Stood By Protesters When SC Didn’t

The reaction of the Supreme Court and the High Courts to anti-CAA protesters was starkly distinct in many ways.

The reaction of the Supreme Court and the High Courts to anti-CAA protesters, was different in many ways, with the latter often taking a more humane, emphatic and proactive stance.

(Photo: Kamran Akhter/Erum Gour/The Quint)

The passing of the Citizenship (Amendment) Act on 11 December 2019 saw lakhs of protesters taking to the streets across India to emphatically reject the CAA, calling it “divisive”, “fascist” and even “unconstitutional”.

While supporters of the ruling Bharatiya Janata Party came out, as expected, in favour of the amendment, there was near-unanimity in its condemnation by others, including independent experts at home and abroad.

Some pointed to the effect it would have with the proposed nationwide National Register of Citizens (openly proclaimed by the Home Minister time and time again), others pointed out that the law was unconstitutional even without the NRC.

The winter of 2019 and early 2020 saw cold, relentless nights of protest, chakka jams and rallying cries loud enough to shake the country out of its slumber, until the COVID-19 pandemic put a lid on the entire agitation. 

Multiple aspects of the dissent against the CAA made their way to the constitutional courts – whether in the form of the record number of petitions challenging its validity, or the requests for protection of protesters from arbitrary arrests and police brutality or even, from some quarters, for their dispersal and punishment.

Constitutional Courts & Doing What Was Required

However, the reaction of the Supreme Court and the High Courts was different in many ways, with the latter often taking a more humane, emphatic and proactive stance to uphold constitutional rights and protect citizens, as compared to a worrying disregard by the apex court.

Speaking to The Quint, SFA Naqvi, Senior Advocate and President of Allahabad Unit of Peoples's Union for Civil Liberties (PUCL) said:

“The Supreme Court, at that point, did not do what was required of them as a constitutional court. For some reason they thought it appropriate to not take action immediately.”   

He further said: “It is possible that the Supreme Court felt that it was best to allow Government action to take it’s proper course, and if the State fails in implementing law and order, then we (the Supreme Court) will take action after sometime.”

“But that has given an edge to the government over the people,” SFA Naqvi added.

“If the Supreme Court would have taken immediate action, like the Allahabad High Court and other High Courts had done, then the situation would have been different.”

SFA Naqvi

The Supreme Court refused to issue directions regarding the police’s violent actions on university campuses early on when concerns were brought to it, and has failed to conduct any hearings on the constitutional challenges, many of which were filed almost a year ago (let alone passing a stay on the law in the interim).

While this took place, however, here’s how some of the High Courts acted across the country.

Allahabad High Court

ON BANNERS OF THOSE ACCUSED OF VIOLENCE DURING ANTI-CAA PROTESTS

When the UP government decided to put up hoardings “naming and shaming” those accused of violence during anti-CAA protests in Lucknow, the Allahabad High Court pulled no punches in calling the state out for its “undemocratic” infringement of privacy.

The Allahabad High Court on 9 March 2020, ordered the removal of the hoardings put up by the Uttar Pradesh government, terming the move as “nothing but an unwarranted interference in privacy of people.”

In its order, the high court made it clear that “no law is in existence permitting the State to place the banners with personal data of the accused from whom compensation is to be charged."

The court also rebutted the government’s argument that it shouldn’t have taken the case up on its own as a public interest litigation (PIL).

“Where there is gross negligence on part of public authorities and government, where the law is disobeyed and the public is put to suffering and where the precious values of the constitution are subjected to injuries, a constitutional court can very well take notice of that at its own.”   

Allahabad High Court

SC’s Reaction?

The Supreme Court on 12 March noted that “there is no law that can back your (UP government) actions”. But did they uphold the High Court order?

No, Instead, the Supreme Court, merely referred the case to a larger bench, without clarifying that the High Court’s order remained in force.

Observing that the matter “involves issues which needs further elaboration and consideration,” the vacation bench of Justices UU Lalit and Aniruddha Bose referred it to CJI SA Bobde to list before a larger bench. The matter has not been listed since.

NOTE: In the meantime, the Uttar Pradesh government first ignored the High Court’s order to take down the hoardings, and then, the cabinet on 13 March gave its nod to an ordinance on recovery of losses due to damage to state and private properties during political processions.

ON DR KAFEEL KHAN

The Allahabad High Court also quashed charges against Dr Kafeel Khan who was arrested on 12 December, 2019.

Dr Kafeel Khan’s crime?

In his speech, at an anti-CAA protest, Dr Kafeel Khan had said: “‘Mota bhai’ teaches us to become Hindu or Muslim but not human beings”.

Dr Khan was slapped with Section 153-A of the IPC (Promoting enmity between different groups on ground of religion).

A magistrate’s court granted him bail soon after this, but the UP Police was having none of it. Instead, on 13 February, a detention order under the National Security Act in connection with his speech was passed against Dr Kafeel Khan, which was extended for additional three-month periods twice.

Ordering Dr Kafeel Khan’s immediate release on 1 September, 2020, the Court said:

“A complete reading of the speech prima facie does not disclose any effort to promote hatred or violence. It also no where threatens peace and tranquility of the city of Aligarh. The address gives a call for national integrity and unity among the citizens. The speech also deprecates any kind of violence. It appears that the District Magistrate had selective reading and selective mention for few phrases from the speech ignoring its true intent.”

The court therefore declared that the original detention order against Dr Kafeel Khan was illegal.

ON POLICE ATROCITIES

The Allahabad High Court on 27 January asked the state government to submit a report on allegations of police atrocities against anti-CAA protesters by 17 February - the next date of hearing.

The court also asked the state government to mention how many people died during anti-CAA protests and also about the complaints registered against the police.

The court further demanded that the government provide autopsy reports of those killed during the protests to grieving families

In February, based on National Human Rights Commission (NHRC) findings, the Court directed the state DGP to identify and take action against officers involved in “stray incidents” of damaging motorcycles and unnecessarily unleashing violence on the apprehended students of Aligarh Muslim University (AMU) amid the protests in December.

The court had further asked the state government to adequately compensate six students who’d been grievously injured by the cops.

Karnataka High Court

ON BAIL FOR 21 ACCUSED IN MANGALURU

The Karnataka High Court had on 17 February granted bail to to 21 PFI members accused of indulging in violence in Mangaluru on 19 December during anti-CAA protests.

The High Court, while granting bail, had said that the records produced indicate that the “identity of the accused involved in the alleged incident appear to have been fixed on the basis of their affiliation to Popular Front of India (PFI) and they being members of the Muslim community”.   

The cops, on the other hand, as pointed out in media reports, had resorted to gas shells, baton charge and air firing to quell anti-CAA protests and dispel protesters, defying prohibitory orders in the state. Two people, on 19 December, reportedly received bullet injuries in police firing and had breathed their last in a hospital.

SC’s Reaction?

The Supreme Court in March stayed the bail order and issued notice to the accused after taking note of the appeal filed by Karnataka government against the grant of bail by the high court – without providing any reasons whasoever for why the high court’s order needed to be stayed.

Finally, months later, on 9 September, the Supreme Court upheld the Karnataka High Court order and allowed bail to the accused – again without clarifying why the bail order had been stayed in the first place.

ON IMPOSITION OF SEC 144 IN BENGALURU

The Karnataka HC had also earlier that month held prohibitory orders imposed in Bengaluru illegal and said that it “does not stand the test of judicial scrutiny laid down by the apex court”.

Referring to the Supreme Court’s decision in the Anuradha Bhasin case on restrictions in Jammu and Kashmir, the High Court said that Section 144 orders could not be imposed in a mechanical, sweeping manner, and could not be based on mere apprehension of disorder.

Bombay High Court

ON RIGHT TO PEACEFUL PROTEST

The Aurangabad bench of the Bombay High Court, in February, granted permission to a few people in Beed district to protest indefinitely against the CAA, noting that those holding peaceful protests against a particular law cannot be dubbed “anti-national” or “traitor”.

The orders by the magistrate and the police in this regard? According to The Wire, the court declared them illegal and pointed out that they needed to be quashed.

“We must keep in mind we are a democratic republic country and our Constitution has given us rule of law and not rule of majority. When such act (CAA) is made, some people may be of a particular religion like Muslims may feel that it is against their interest and such act needs to be opposed. (sic)”   

The Court also referred to the Khilafat Movement and the Indian Freedom struggle, and also said:

“In the British period, our ancestors fought for freedom and also for human rights, and due to the philosophy behind the agitations, we created our Constitution. It can be said that it is unfortunate but the people are required to agitate against their own government now but only on that ground the agitation cannot be suppressed. (sic)”   

Madras High Court

ON FIR AGAINST ‘PEACEFUL’ ANTI-CAA PROTESTERS

In an even more recent example, the Madras High Court, in an order dated 5 November, quashed an FIR that had been registered against some people who had conducted an anti-CAA and NRC demonstration in Shenkottai, Tamil Nadu, noting that “no untoward incident had taken place” at the protest.

“The country had witnessed protests all over by different sections of people against the said amendments. Since the protest was peaceful and even the First Information Report does not disclose any act of violence or happening of untoward incident, I am of the view that the continued prosecution is not warranted.”

Madras High Court

The Court not only applied this order to the petitioner who (was one of the protesters), but to all those accused by connection with the case.

In addition to these cases, it should also be noted that other High Courts in the country, such as those in Jharkhand, Telangana and Tripura, have also separately passed orders upholding the anti-CAA protesters’ right to agitate.