In present case, the division bench of Karnataka HC through Chief Justice A.K.Oka and Justice Chandangoudar in the case of Sowmya Reddy v. State of Karnataka, held that right to protest is fundamental right under article 19(1)(a) of the constitution and declared order of District Magistrate illegal.
The order of District Magistrate, Bengaluru city was made on 18th December 2019 (impugned order), which was issued under section 144 of CrPC. The impugned order prohibiting within Bengaluru city limits, any public processions or protest and also cancelled all permissions granted from 19th December, 2019 by 6.00 am to 21st December 2019. The cancellation of permissions which were granted under the Regulation of Public Processions and Assemblies (Bengaluru City) Order, 2009 were also challenged in the same.
The Division bench while considering the impugned order decided that even though the order will come to an end on the next day of hearing, it violates the fundamental rights of the citizens and thus the court will go into the legality of the impugned order.
Submission on behalf of petitioner:
- The counsel for the petitioner submitted that the formation of the opinion is the condition precedent for passing an order under section 144(1) of CrPC which is not reflected in the impugned order.
- Further reference was made to two decisions of the Supreme Court i.e. Ramlila Maidan Incident,Re and Anuradha Bhasin v. Union of India. It was further argued by the petitioner that before taking recourse to section 144(1), the authority should satisfy that there is no alternative method to prevent the mischief sought to be prevented and the opinion which is required to be formed under Section 144(1) must be arrived at after making careful inquiry by the magistrate. It must set out the facts in the order so as to understand the reason of invoking section.
- The petitioner argued that the Doctrine of Proportionality has application in this case. It was further argued that though the satisfaction of the authority in the decision is subjective, this subjective satisfaction has to be arrived objectively by taking into consideration the relevant factors under Section 144(1) of the Code. However, the impugned order merely states whatever was addressed by Deputy Commissioner of Police in the City in their letter addressed to the Commissioner of Police, who is also the District Magistrate. It includes no reason, no material facts.
- The petitioner further draws the attention of the court to the various clauses under Regulating Order, several factors which require to be taken into consideration under Clause 7 of Regulating order and provision to record the statement of person who applies for license or permission. Thus order stands vitiated.
Submission on behalf of the respondent:
- It was submitted that the District Magistrate was dealing with the situation of extremely urgent situation which could have effect on law and order situation. Further, it was submitted that the court is only concerned with the decision making process and not with the correctness of decision itself and the court cannot go into the question of adequacy of the material.
- It was further contended by the respondent that what is set out in the said reports/ letters by the Deputy Commissioners of Police, are material facts which are found in the impugned order. The District Magistrate accepted what is stated in the reports submitted by the Deputy Commissioner of Police, which contains material facts to pass order under section 144(1) of CrPC.
- It was argued that the immediate danger test cannot be applied and the test to be applied is the apprehension of danger. A different approach is required to be adopted to deal with different situations and therefore, there is no fault in approach of the District Magistrate.
An intervention application was filed by the party in person, who submitted that there were a lot of harassment caused to public due to situation which prevailed on 19th and 20th December, 2019. Further submission was made that the order should be judged in the light of what exactly happened on 19th and 20th December.
Decision of the court:
The High Court made reference to paragraph 48 of the decision of Mazdoor Kisan Shakti Sangathan, which states that
“Undoubtedly, holding peaceful demonstrations by the citizenry in order to air its grievances and to ensure that these grievances are heard in the relevant quarters, is its fundamental right. Legitimate Dissent is a distinguishable feature of any democracy.”
When the Court tests the legality of preventive order, it not only becomes a matter of technicality, but also of a matter of substance. The state is custodian of the interest of the citizens, thus it is also responsible for protecting them. However, the state is also custodian of fundamental rights of the citizens and it must uphold fundamental rights by taking recourse to imposing minimum restrictions. The court further opined that so far validity and legality of the order is concerned, this court is concerned only with the decision making process and not with the correctness of the decision. The District Magistrate has not recorded formation of any opinion as contemplated under section 144(1) of the CrPC. The court made reference to Babulal Parate v. State of Maharashtra and Madhu Limaye V. Subdivisional Magistrate, Monghyr and others.
The court further made reference to Ramlila Maidan case, the Supreme Court held that reason have to be recorded for passing an order under section 144. Even though requirement of recording reasons cannot be stretched beyond a limit, but in impugned order, there is complete absence of reasons.
Since the effect of order under section 144(1) of CrPC is to take away the fundamental rights of the citizens and thus subjective satisfaction of the District Magistrate and formation of an opinion are condition precedent for the exercise of power under section 144 of the Code. The court made reference to paragraph 129 of Anuradha Bhansin case. Thus in present case, there is no application of independent mind by District Magistrate as order merely reproduced the letter of his superior. Therefore, the Karnataka High Court through bench of Chief Justice A.K.Oka and Justice Chandangoudar held that the impugned order is completely illegal. It does not stand test of judicial scrutiny. Further court passed order that the petitions are partly allowed by holding that impugned order is illegal and pending IA stands disposed of.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
 (2012) 5 SCC 1
 2020 SCC online 25
 AIR 1961 SC 884
 (1973) 3 SCC 746