AFR

In Chamber

Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 2497 of 2019

Petitioner: Rajat Gangwar

Respondents: State of U.P. and others

Counsel for Petitioner: Kunal Shah, Abhinav Bhattacharya

Counsel for Respondents: Nimai Das, SC

Hon'ble Sudhir Agarwal, J.

Hon'ble Rajeev Misra, J.

1.Heard Sri Kunal Shah and Sri Abhinav Bhattacharya, Advocates

for petitioner and Sri Nimai Das, learned Additional Chief Standing

Counsel assisted by Sri B.P. Singh Kachhawah, Standing Counsel for

respondents.

2.Petitioner-Rajat Gangwar, has filed this writ petition claiming

himself to be an Advocate registered with U.P. Bar Council,

Enrollment No. U.P. (G) 6734/2014 and Advocate on Roll No.

1494/2016, practicing with Sri Mohd. Arif Khan, Senior Advocate and

Sri Amrendra Nath Tripathi, Advocate, at Lucknow.

3.The writ petition has been filed as Public Interest Litigation

(hereinafter referred to as 'PIL') with following prayer:

“(a) Issue a writ, order or direction in the nature of a

mandamus directing the Respondents to formulate guidelines

for grant of permission of peaceful demonstrations after taking

into consideration the competing interests of various stake

holders.

(b) Issue a suitable order for setting up of Claims

Commissioner in the light of the guidelines stipulated by the

Hon'ble Supreme Court in Destruction of Public and Private

Properties v. State of A.P. and Others (2009) 5 SCC 212.

(c) Issue a writ, order or direction in the nature of a mandamus

directing the Respondents to upload information on accessible

electronic database with respect to detainees who have been

arrested in the aftermath of the protests that ensued in the State

2

of Uttar Pradesh after the enactment of Citizenship Amendment

Act, 2019, status reports of the investigation/trials and provide

visitation rights to their lawyers and friends, as per law.

(d) Issue any other suitable writ, order or direction, which this

Hon'ble Court may deem fit and proper in the facts and

circumstances of the case;

4.Petitioner claims to espouse the cause of residents of State of

U.P. including peaceful protesters, persons who have suffered loss of

property and life due to protests, turning violent, and injured police

personnel of State of U.P. Petitioner also seeks enforcement of various

guidelines laid down by Supreme Court in In Re: Destruction of

Public and Private Properties vs. State of Andhra Pradesh and

others, 2009(5) SCC 212; Mazdoor Kisan Shakti Sangathan vs.

The Union of India (UOI) and Ors., AIR 2018 SC 3476; and,

Kodungallur Film Society and Ors. vs. Union of India (UOI) and

Ors., 2018(10) SCC 713.

5.Brief facts stated in the writ petition are that, on 19.07.2016

Citizenship (Amendment) Bill, 2016 was introduced in Lok Sabha and

on 12.08.2016 it was referred to Joint Parliamentary Committee. It

was passed by Lok Sabha on 08.01.2019 but due to dissolution of Lok

Sabha, Bill lapsed. Later on Citizenship (Amendment) Bill 2019 was

introduced on 09.12.2019 in 17

th

Lok Sabha and passed on

10.12.2019. On 11.12.2019 Rajya Sabha also passed Bill. It received

assent of President of India on 12.12.2012 and became Citizenship

(Amendment) Act, 2019 (hereinafter referred to as “CAA, 2019”). It

is also stated in Para 15 of writ petition that vires of CAA, 2019 has

been challenged before Supreme Court by filing writ petitions under

Article 32 of Constitution of India. On 18.12.2019 Supreme Court

issued notices and has fixed 22.01.2020 for hearing. In the meantime

several protests ensued across the country which included protests

held at Jamia Millia Islamia University, Delhi (hereinafter referred to

3

as 'JMIU') and Aligarh Muslim University, Aligarh (hereinafter

referred to as 'AMU'). In State of U.P. also similar protests ensued at

Lucknow on 19.12.2019 which turned violent resulting in damage to

public property as also loss of life and injuries to several persons.

Print and Electronic Media have reported information of spreading of

similar protests which turned violent in different cities of State of

U.P., i.e., Aligarh, Meerut, Muzaffarnagar, Bijnor, Bulandshahr,

Kanpur, Rampur, Gorakhpur and Varanasi, wherein about 17 persons

lost their life, to the best knowledge of petitioner. Police outpost and

several private and government movable and immovable properties

were vandalized and set ablaze. At some places stone pelting and

firing by belligerent protesters also took place. District authorities

imposed restrictions under Section 144 Cr.P.C. but violating the same

various protests which turned violent were raised. Protests continued

at different places in State of U.P. As per newspaper report the

restrictions under Section 144 Cr.P.C. imposed on 20.12.2019 have

been extended upto 31.01.2020. Chief Minister is also reported to

have stated that no permission was granted by State authorities to

anyone to observe protest amidst operation of restriction under

Section 144 Cr.P.C. Similar statement was made by Director General

of Police, State of U.P. (hereinafter referred to as 'DGPUP'). It is

further stated that though petitioner does not dispute that requirement

of prior permission to exercise fundamental rights of peaceful protests

and peaceful assembly guaranteed under Article 19(1)(a) and 19(1)(b)

of Constitution of India is valid restriction, but respondents-authorities

under the garb of restrictive orders, passed under Section 144 of

Cr.P.C., cannot scuttle, efface or throttle fundamental rights of

peaceful protesters and demonstrators. Their exists a duty on the part

of State to balance competing interest i.e. rights under Article 19(1)(a)

and 19(1)(b) of citizens vis-a-vis duty of State to maintain law and

public order. It is to be undertaken in the manner as stated by Supreme

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Court in Para 29 of the judgments in Ramlila Maidan Incident vs.

Home Secretary, Union of India (UOI) and Ors., 2012(5) SCC 1;

In Re: Destruction of Public and Private Properties vs. State of

Andhra Pradesh (supra); Mazdoor Kisan Shakti Sangathan vs.

The Union of India (supra); and, Kodungallur Film Society and

Ors. vs. Union of India (supra). State is under a dual obligation to

bolster and foster fundamental rights of citizens under Article 19 of

Constitution. At the same time, it is under an obligation to ensure

public order, tranquility and social order. Rights of citizens can be

regulated with reasonable restrictions but cannot be prohibited

altogether. However, State has failed in its obligation to secure law

and order and protect fundamental rights of citizens inasmuch as State

Government did not conceive of any guidelines qua granting/refusal

of permission in the wake of operation of orders under Section 144

Cr.P.C. State has failed to conceptualize guidelines for granting

permission and regulating protesters. It is imperative upon State, as a

part of regulative measures, to demarcate area, time slot of protest,

identification etc. of protesters and credentials thereof, before grant of

any permission for observing protests, processions etc. State is also

under obligation to deploy adequate security forces, provide medical

facilities, drone photography/videography, availability of fire brigades

etc. It is also obligatory to deploy requisite strength of water cannons

to ensure peaceful procession and to overcome any untoward incident.

6.Some directions were issued in similar matter by a Division

Bench of Madras High Court in Writ Petition No. 36634 of 2019,

Varaaki vs. Chief Secretary Tamil Nadu, decided on 22.12.2019

and the same are relied in para 37 of the writ petition.

7.It is pleaded by petitioner in para 39 onwards that State of U.P.

is engulfed in a very sorry state of affairs. There have been

widespread destruction of public and private properties. The incident

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of violence has continued unabated for the past a few days and have

gripped various cities of State of U.P. The said demonstrations/

protests have thrown public and private life and property in jeopardy.

News of violence is continuing with each passing hour. Several police

personnel, innocent citizens and protesters have sustained injuries.

Some have lost lives. Public and private property have also been

damaged by certain miscreants and anti-social elements. The

miscreants have sabotaged peaceful protests and hindering the right of

free speech of innocent citizens. They have also committed criminal

acts qua private and public properties. It is imperative upon

Government to assess damages caused to public and private property,

by appointing a Claims Commissioner and thereafter to make

investigation into the liability. Print and Electronic Media report

shows that respondents have started identification of miscreants and to

recover loss of public and private property, fixing liability and

recovering the amount of damages. However, a road map or

procedure qua assessment of damages has to be prepared in the light

of guidelines laid down by Supreme Court in In Re: Destruction of

Public and Private Properties vs. State of Andhra Pradesh

(supra).

8.Petitioner has also stated in Para 46 that respondents must

upload information on accessible electronic database with respect to

the detainees and provide visitation rights to their lawyers, family

members and friends, as per law. Respondents-authorities after the

protest turned violent instead of devising a mechanism and

participating with persons organising protests, have started a massive

unprecedented crackdown on activists and other persons, arresting and

detaining several of them. A number of activists including lawyers

have also been detained by respondents.

9.Petitioner claims to have received telephonic calls in the

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evening of 21.12.2019, stating that some activists of Peoples Union

for Civil Liberties (hereinafter referred to as 'PUCL') have been

arrested and detained in Lucknow and Muzaffarnagar.

10.One Mohd. Shoaib, Advocate was detained in Lucknow by

respondents and his whereabouts were not known to his kith and kin,

resulting into filing of Habeas Corpus Writ Petition No. 36848 of

2019 before Lucknow Bench of this Court, wherein an order was

passed on 21.12.2019 (copy of the said order has been placed on

record as Annexure 9 to the writ petition). In Para 51 of the writ

petition, it is stated that petitioner has received information from

colleagues and other persons that various persons detained are facing

similar predicaments and their whereabouts are not known to their

kiths and kins. In this regard, a reference is made to the cases of

Shamim Ahmad, Shavez Ahmad, Abdul Haffez and Ibad Ahmad,

whose whereabouts have not been communicated to their kiths and

kins and in this regard, a letter dated nil (Annexure 10 to the writ

petition) has been submitted by one Raees Jahan, wife of Irshad

Ahmad to the District Magistrate, Lucknow. In this backdrop, it has

been prayed that directions be issued as prayed in the writ petition,

which we have quoted above.

11.Learned counsel for petitioner contended that peaceful protest

and assembly is a part of fundamental right of speech and movement.

Though reasonable restrictions may be imposed but fundamental

rights of protest and assembly or raising voice of dissent cannot be

prohibited in an arbitrary manner. In the garb of taking action against

protest march, which turned violent, State authorities cannot penalize

innocent protesters, ignoring the fact that violent activities have been

dominated by some miscreants and anti-social elements who have

intruded the peaceful protests. Instead of identifying those miscreants

and anti-social elements, State is illegally arresting and detaining

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innocent people, attaching their properties, denying information,

which they, under law, are bound to disclose, to their kith and kin. A

large number of residents of State of U.P. are being denied their

fundamental rights of free movement etc. at the pretext of arrest and

detention. He further submitted that various guidelines and preventive

actions which State authorities are obliged to observe in such

circumstances as laid down by Supreme Court in various authorities

are being ignored and blatantly, being violated. Since the number of

such persons is so much that everyone cannot approach this Court,

hence, this writ petition for protection of their rights in the hands of

arbitrary and illegal action of the respondents.

12.Shri Nimai Das, learned Additional Chief Standing Counsel

(hereinafter referred to as 'ACSC') assisted by Shri B.P. Singh

Kachhawah, Standing Counsel, after receiving instructions, has stated

that as on 25.12.2019 in all, 1022 persons have been arrested at

different places and details thereof are as under :-

Sl.No. District Number of persons

arrested

1. Meerut 13

2. Ghaziabad 62

3. Muzaffarnagar 1

4. Bareilly 63

5. Pilibhit 10

6. Amroha 10

7. Bijnor 236

8. Moradabad 2

9. Rampur 50

10. Sambhal 45

11. Firozabad 24

12. Aligarh 26

8

13. Hathras 2

14. Kanpur Nagar 24

15. Fatehgarh 7

16. Jhansi 4

17. Lucknow 170

18. Raebareilly 2

19. Sitapur 19

20. Ambedkarnagar 6

21. Fatehpur 1

22. Pratapgarh 5

23. Hamirpur 8

24. Deoria 17

25. Gorakhpur 5

26. Kushinagar 23

27.Sant Kabir Nagar 1

28. Gonda 1

29. Bahraich 66

30. Varanasi 68

31. Jaunpur 3

32. Azamgarh 13

33. Mau 20

34. Bhadohi 15

Total 1022

13.He has also placed before us a copy of letter dated 26.12.2019

sent by the Additional Chief Secretary (Home) (hereinafter referred to

as 'Add. CS (Home)') to the District Magistrates of Lucknow, Meerut,

Hapur, Saharanpur, Rampur, Firozabad, Kanpur Nagar,

Muzaffarnagar, Mau, Aligarh, Gorakhpur and Bulandshahar, directing

them to make assessment of loss of public and private property and

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take action for recovery of damages from responsible protesters

causing such damage, in accordance with Government Order dated

27.04.2011, which was issued pursuant to Supreme Court's judgment

in In Re: Destruction of Public and Private Properties vs. State of

Andhra Pradesh (supra) and this Court's judgment in Mohammad

Shujauddin vs. State of U.P. and others, 2011(1) ADJ 63. Learned

ACSC further stated that after making due identification of guilty

persons i.e. after collecting video clipping, photographs etc. which

have been prepared by individual residents of the affected area, media

and police authorities etc., notices are being sent to those persons who

are identified prima facie, giving them opportunity to reply and

thereafter, appropriate action is under process. He clearly stated that

without proper identification and ascertaining involvement of

individual in destructive activities, causing damage to public and

private property etc., no action would be taken by State against any

individual who is otherwise innocent. Every care and precaution, as

far as possible, to the highest extent, is being taken by State

authorities in ensuring this objective.

14.We have heard parties at length. The entire genesis of dispute

raised in this writ petition is Citizenship Act, 1955 (hereinafter

referred to as 'Act, 1955') and amendment made therein vide CAA,

2019. It would, therefore, be appropriate to have a glimpse of

aforesaid statute.

15.Part-II of Constitution of India deals with subject of

'Citizenship'. It has Articles 5 to 11. Article 5 provides that at

commencement of this Constitution, every person who has his

domicile in territory of India and (a) was born in the territory of India;

or (b) either of whose parents was born in the territory of India; or (iii)

who has been ordinarily resident in the territory of India for not less

than five years immediately preceding such commencement, shall be a

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citizen of India.

16.Therefore, every person who had his domicile in territory of

India and born before 26

th

January, 1950 or any of his parents was

born in the territory of India or the individual was residing in territory

of India for a period not less than five years before 26

th

January, 1950,

shall be a citizen of India. This is 'Citizenship' conferred by Article 5

at the commencement of Constitution.

17.The term “territory of India” has been defined in Article 1.

Article 6 talks of citizenship of such persons who migrated to India

from Pakistan. Giving overriding effect over Article 5, Article 5

provides that a person who has migrated to territory of India from

territory now included in Pakistan, shall be deemed to be a citizen of

India at the commencement of Constitution if (i) he or either of his

parents or any of his grandparents was born in India, as defined in

Government of India Act, 1935 (as originally enacted); and (ii) in case

where such person has so migrated before 19

th

July, 1948, he has been

ordinarily resident in territory of India since the date of his migration;

or in the case where such person has so migrated on or after 19

th

July,

1948, he has been registered as a citizen of India by an officer

appointed in that behalf by Government of the Dominion of India on

an application made by him therefor to such officer before the

commencement of Constitution in the form and manner prescribed by

Government.

18.There is a proviso also that no person shall be so registered

unless he has been resident in territory of India for at least six months

immediately preceding the date of his application.

19.Article 7 talks of rights of citizenship of certain migrants to

Pakistan after 1

st

March, 1947. It is stated that a person, who has after

1

st

March, 1947, migrated from territory of India to territory now

included in Pakistan, shall not be deemed to be a citizen of India.

11

There is a proviso, however, providing that a person who had so

migrated to Pakistan, but then returned to territory of India under a

permit for resettlement or permanent return issued by or under the

authority of any law, every such person shall, for the purposes of

Article 6 (b), be deemed to have been migrated to territory of India

after 19

th

July, 1948. Article 7 has been given overriding effect over

Articles 5 and 6 both.

20.Article 8 talks of right of citizenship to certain persons of Indian

origin residing outside India. Article 9 talks of loss of citizenship of

India if any person has voluntarily acquired citizenship of any foreign

State. Article 10 provides that every person who is or is deemed to be

a citizen of India under any of the provisions of Part-II of

Constitution, shall, subject to the provisions of any law that may be

made by Parliament, continue to be such citizen. Article 11 provides

that nothing in the foregoing provisions of Part-II shall derogate from

the power of Parliament to make any provision with respect to

acquisition and termination of citizenship and all other matters

relating to citizenship.

21.Considering the above provision, in State of U.P. and others

vs. Shah Mohammed and others, (1969) 1 SCC 771, Court held that

Constitution does not intend to lay down a permanent or

comprehensive law relating to citizenship of India. Power to enact

such a law is left to Parliament and it is not fettered by Articles 5 to

10. It is competent for Parliament, in exercise of power conferred by

Article 11, to take away or effect citizenship already acquired under

other articles of Part-II of the Constitution. This is what was also held

in Izhar Ahmad Khan vs. Union of India, 1962 AIR 1052.

22.Entry 17, list I Schedule VII of Constitution provides subject of

“Citizenship, naturalisation and aliens” and thus, power to make law

in respect of citizenship is within the ambit of Parliament.

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23.In exercise of aforesaid power, Parliament enacted Act, 1955.

Section 3 of Act, 1955 deals with the subject of 'Citizenship by birth';

Section 4 talks of 'Citizenship by descent'; Section 5 provides

'Citizenship by registration' and Section 6 deals with 'Citizenship by

naturalisation'. Section 8 confers power upon any citizen to renunciate

citizenship and Section 9 talks of termination of citizenship. Section

10 talks of 'Deprivation of citizenship' in certain cases. Section 13

makes a provision for Certificate of Citizenship in case of doubt,

which can be issued by Central Government. It provides that such

certificate, when issued, shall be conclusive evidence that person was

citizen on date of such certificate, but this is without prejudice to any

evidence that he was such a citizen at an earlier date. Section 16

confers power upon Central Government to delegate its powers,

except Sections 10 and 18, to such officer or authority as may be so

specified. Section 18 confers power of making rules upon Central

Government.

24.Initially, there were four Schedules appended to Act, 1955, but

First and Fourth Schedule having already been omitted, now, there

remained only two schedules i.e. Second and Third Schedule. The

Third Schedule provides qualifications for naturalisation i.e. in the

context of subject of citizenship governed by Section 6(1) of Act,

1955.

25.After initial enactment, Act, 1955 has undergone four

amendments vide Act 65 of 1985, Act 6 of 2004, Act 32 of 2005 and

Act 1 of 2015.

26.The first amendment of 1985 i.e. Act 65 of 1985 was

necessitated due to Memorandum of Settlement (Assam Accord)

relating to foreigners' issue. It resulted in insertion of Section 6A,

making special provisions as to citizenship of persons covered by

Assam Accord.

13

27.The next amendment of 2004 was necessitated due to policy

accepted by Central Government for providing dual citizenship to

persons of Indian origin belonging to certain specified countries. It

resulted in insertion of Sections 7A, 7B, 7C and 7D, which came into

force on 3.12.2004, but these provisions have been substituted in

order to give effect the later modified policy of Government of India

by substitution of Section 7A to 7D w.e.f. 6.1.2015 vide Act 1 of

2015.

28.The amendment of 2005 i.e. Act 32 of 2005 resulted in

omission of Clause 2(gg) and Fourth Schedule w.e.f. 28.06.2005.

29.The present amendment made in Act, 1955 i.e. CAA, 2019 has

resulted in amendments of Section 2(1)(b) by insertion of a Proviso,

insertion of Section 6B, insertion of Clause (da) in Section 7D and

also insertion of Proviso after Clause (f) in Section 7D. It has also

inserted Clause (eei) in Section 18 (2) and a Proviso in Clause (d) of

Third Schedule.

30.Section 2(b) of Act, 1955 defines “illegal migrant”. Earlier

provision was substituted by Act 6 of 2004 w.e.f. 3.12.2004, replacing

Clause (b) and (c) and Proviso, as existed earlier. Initially, Section 2

(b) and (c) read as under :-

“(b) "citizen", in relation to a country specified in the First

Schedule, means a person who, under the citizenship or

nationality law for the time being in force in that country, is a

citizen or national of that country;

"(c) "citizenship or nationality law", in relation to a country

specified in the First Schedule, means an enactment of the

Legislature of that country which at the request of the

Government of that country, the Central Government may, by

notification in the Official Gazette, have declared to be an

enactment making provisions for the citizenship or nationality

of that country:" (emphasis added)

31.The aforesaid Clauses (b) and (c) of Section 2 were substituted

14

by Clause (b) w.e.f. 3.12.2004 and it reads as under :-

(b) “illegal migrant” means a foreigner who has entered into

India–

(i) without a valid passport or other travel documents and

such other document or authority as may be prescribed by or

under any law in that behalf; or

(ii) with a valid passport or other travel documents and such

other document or authority as may be prescribed by or under

any law in that behalf but remains therein beyond the

permitted period of time; (emphasis added)

32.Now, after Section 2(b)(i), a Proviso has been inserted by CAA,

2019 and it reads as under :-

“Provided that any person belonging to Hindu, Sikh,

Buddhist, Jain, Parsi or Christian community from

Afghanistan, Bangladesh or Pakistan, who entered into India

on or before 31

st

day of December, 2014 and who has been

exempted by the Central Government by or under clause (c)

of sub-section (2) of section 3 of the Passport (Entry into

India) Act, 1920 or from the application of the provisions of

the Foreigners Act, 1946 or any rule or order made

thereunder, shall not be treated as illegal migrant for the

purposes of this Act;” (emphasis added)

33.Section 6B has been inserted for making special provisions as

to citizenship of person covered by proviso to clause (b) of sub-

section (1) of Section 2 and it reads as under :-

“6B. (1) The Central Government or an authority specified by

it in this behalf may, subject to such conditions, restrictions

and manner as may be prescribed, on an application made in

this behalf, grant a certificate of registration or certificate of

naturalisation to a person referred to in the proviso to clause

(b) of sub-section (1) of section 2.

(2) Subject to fulfilment of the conditions specified in

section 5 or the qualifications for naturalisation under the

provisions of the Third Schedule, a person granted the

certificate of registration or certificate of naturalisation under

15

sub-section (1) shall be deemed to be a citizen of India from

the date of his entry into India.

(3) On and from the date of commencement of the Citizenship

(Amendment) Act, 2019, any proceeding pending against a

person under this section in respect of illegal migration or

citizenship shall stand abated on conferment of citizenship to

him:

Provided that such person shall not be disqualified for

making application for citizenship under this section on the

ground that the proceeding is pending against him and the

Central Government or authority specified by it in this behalf

shall not reject his application on that ground if he is otherwise

found qualified for grant of citizenship under this section:

Provided further that the person who makes the

application for citizenship under this section shall not be

deprived of his rights and privileges to which he was entitled

on the date of receipt of his application on the ground of

making such application.

(4) Nothing in this section shall apply to tribal area of

Assam, Meghalaya, Mizoram or Tripura as included in the

Sixth Schedule to the Constitution and the area covered under

"The Inner Line" notified under the Bengal Eastern Frontier

Regulation, 1873.” (emphasis added)

34.A perusal of Section 6B(4) shows that it has not been extended

to tribal area of Assam, Meghalaya, Mizoram and Tripura as included

in Sixth Schedule of Constitution and also to area covered under “The

Inner Line” notified under Bengal Eastern Frontier Regulation, 1873.

35.Section 7D of Act, 1955 conferred power upon Central

Government to cancel registration granted under Section 7A(1) to

Overseas Citizen of India cardholders. Such power can be exercised

by Central Government if it is satisfied that the conditions provided in

Clauses (a) to (f) mentioned therein exist. By inserting clause (da),

one more such condition has been provided in Section 7D. Further, at

the end of Section 7D i.e. after Clause (f), a Proviso has been inserted

16

that no order shall be passed under Section 7D without giving

reasonable opportunity of being heard to the persons concerned i.e.

Overseas Citizen of India cardholders. Section 18 is Rule-making

power conferred upon Central Government and by inserting Clause

(eei) in sub-Section (2) of Section 18, one more subject has been

added in respect whereof rules can be framed by Central Government.

Clause (eei) reads as under :-

“(eei) the conditions, restrictions and manner for granting

certificate of registration or certificate of naturalisation under

sub-section (1) of Section 6B;”

36.As we have already said that Third Schedule deals with

qualification for naturalisation with reference to Section 6(1) of Act,

1955. By inserting a Proviso in Clause (d), a modified qualification

has been provided with respect to period of residence or service of

Government in India and instead of 11 years provided in Clause (d), it

has been reduced to 5 years for the category of persons mentioned in

said proviso.

37.The statement of object and reasons for CAA, 2019 provides

that in order to give protection to the persecuted members of certain

minority communities in the three countries, namely, Pakistan,

Bangladesh and Afghanistan, amendments have been made in Act,

1955 vide CAA, 2019.

38.Learned ACSC submitted that under the Constitution of India,

people of India, the source of power of making Constitution, as a

matter of policy, while contemplating equality in all respects to the

residents of India, still have protected on certain aspects, rights of

minorities by virtue of Articles 29 and 30 of Constitution. Similarly,

Parliament in its policy of protecting certain minority communities of

three neighbouring countries, who are being persecuted thereat on

account of the fact that they are religious minorities in those countries,

17

have desired to provide protection to such persecuted persons and

therefore aforesaid amendments have been made by CAA, 2019. He

stated that earlier also, when dual citizenship to persons of Indian

Origin was contemplated and given effect to by Amendment Act 6 of

2004, it was confined to Indians belonging to certain specified

countries, but at that time also, persons of Indian Origin of Pakistan

and Bangladesh were excluded. When Amendment Act 32 of 2005

was enacted, exclusion of Pakistan and Bangladesh continued for the

purpose of dual citizenship. He urged that selection of countries was

within the realm of Parliament and made in accordance with policy.

This time, when three countries have been chosen, integral reason is

to protect continuous persecution of members of certain minority

communities in the aforesaid countries only on account of their being

religious minorities.

39.However, We need not go in further details of this aspect for the

reason that neither rational of the aforesaid amendment is up for

consideration before this Court nor anything has been argued on this

aspect, but reference to the aforesaid provisions have been made only

to understand the backdrop of large-scale protest, agitation and

processions which have erupted, giving rise to the present writ

petition. We are also informed that Supreme Court is already ceased

with this matter.

40.Learned counsel for the petitioners stated that protest and

procession is against discriminatory amendment based on religion,

inasmuch as, members of other religion residing in aforesaid three

countries viz. Pakistan, Bangladesh and Afghanistan, who do not

belong to religions mentioned in the provisions, added by way of

amendment by CAA, 2019 have been singled-out, only on the ground

of religion, which is not permissible in the Constitution and it is per

se arbitrary and discriminatory, hence, to oppose this discrimination

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founded only on religion, a large number of people at different places,

have protested, taken out processions, which have resulted at some

places, some violence and destructive activities. It is contended that

petitioner is not, either supporting the amendment or opposing it; he is

also not looking into genuineness of protest, march and processions

taken out by individuals or groups of people, but what he is concerned

about, is that every individual has a fundamental right of speech,

assembly and movement and such fundamental right of individuals

cannot be thwarted away by Executives by means of either resorting

to restrictive provisions like Section 144 Cr.P.C. or by involving such

individuals in various criminal cases, etc. He said that individual

fundamental rights are being breached with impunity by resorting to

illegal arrest and without following guidelines laid down by Supreme

Court in the matters of arrest, etc. in Joginder Kumar vs. State of

U.P. and others 1994(4) SCC 260, which read as under :

“1. An arrested person being held in custody is entitled, if he so

requests to have one friend, relative or other person who is

known to him or likely to take an interest in his welfare told as

far as is practicable that he has been arrested and where is

being detained.

2. The Police Officer shall inform the arrested person when he

is brought to the police station of this right.

3. An entry shall be required to be made in the Diary as to who

was informed of the arrest. These protections from power must

be held to flow from Articles 21 and 22(1) and enforced

strictly.”

41.Per contra, Sri Nimai Das, learned Additional Chief Standing

Counsel stated that State has taken all precaution and care to protect

fundamental right of every individual, but simultaneously, it has not

allowed and cannot allow the so-called “protesters” to breach

fundamental rights of other innocent peaceful residents. State is

obliged to protect life, liberty including property of such people. State

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is also obliged to ensure non-infringement of their fundamental rights

of movement, speech, assembly, etc. by creating obstruction,

destruction and damage in various ways by such Protesters. Individual

rights of non protesters and also protecting their property involves

fundamental rights of non-protesters. He said that State has made all

attempts to keep a balance in maintaining all such rights, but where

protesters and processionists have crossed the limit of lawful and

peaceful protest and demonstration and their act has entered into the

realm of offence or criminal activity, State Authorities are bound and

they have actually intervened at that stage to prevent commission of

offence or unlawful activities. Where breach of law has continued and

went unabated, State has taken all permissible steps including

detention and arrest of persons indulged in such activities. He stated

that wherever necessary, even temporary detention was resorted to and

as soon as its necessity disappeared, those detainees were immediately

released. He said that after verification of various material in the form

of electronic and other evidence, identity of the persons has been

verified and thereafter, action has been taken, which includes

imposition of damages and also initiating criminal proceedings. He

said that procedure for assessment of damage to public and private

property has been laid down in relevant Government Order and that is

being strictly followed. Every care is being taken so that no innocent

person, who is not indulged in the wrong activities, is harassed,

penalised or otherwise involved in various proceedings. He said that

the status of a person is of no relevance. Merely for the reason that a

person is a professional or a businessman or serviceman etc. it would

not guide the authorities to see whether they should act against him or

not even if such individual is indulged in illegal and unlawful

activities. Every violator of law has to be dealt with equally. The

illustration given by petitioners about Mohd. Shoaib, Advocate

arrested by police would not help the petitioner in any manner, for the

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reason that a person even if an advocate, would not get a licence to

indulge in unlawful, illegal and destructive activities. In order to enjoy

own individual fundamental right of speech, movement, assembly, no

person, even if he is an Advocate, has a licence, liberty or privilege to

obstruct other innocent residents and citizens of State of U.P. in

exercise of similar rights of their own self and property. If any

property, public or private is damaged by anyone in the garb of

exercising his fundamental right, such right ceases to be a valid

exercise or enjoyment of fundamental right but becomes an illegal,

unlawful activity, which is punishable and actionable in the manner

provided in law.

42.The general propositions, as argued above on both sides, we

find have consensus that fundamental right of speech and includes

right of assembly or right of taking peaceful procession. A voice of

dissent is fundamental in a democracy. A person, who raised his voice

of dissent, cannot be held guilty of any illegal or unlawful activities so

long as dissent is peaceful, maintains harmony, does not disturb public

tranquility and also protects similar fundamental rights enjoyed by

others, who are not part of such processions or protests. Further, if a

person or group of persons, collect or gather in a large number,

constitute a procession and take out such procession on public way,

obstructing movement of others, they violate fundamental rights of

others of free movement and therefore, such persons taking out

processions are also under an obligation to take care that their exercise

of fundamental right does not infringe fundamental rights of others as

both have to be maintained and enjoyed simultaneously. Fundamental

right of an individual or group of individuals cannot override similar

fundamental rights of others, who are similarly situated, though not

participants of such protest or procession. A march on public road has

to take care that free movement of traffic is not obstructed, other

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people's fundamental rights of movement is not obstructed, necessary

services like ambulance, fire brigade, etc. are not obstructed. If any

such obstruction takes place, it cannot be said that those, who are part

and parcel of alleged protest or procession, are simply exercising their

fundamental right, inasmuch as, exercise of fundamental right does

not mean obstruction, defeat and infringement of fundamental rights

of others. Further, those who carry out a procession on public road or

public passage or path or public place, are responsible to ensure that

no person i.e. the alleged miscreant or criminal element, intrude and

become part of said procession or collection of such individuals

protesting so as to cause any damage or destruction to public or

private property. No defence is available to those who are collecting

and not able to keep out such miscreants or criminal elements from

becoming part of their own procession and thereby to contend that

they have not done anything and it was responsibility of State to sift

out those miscreants and criminal elements and detain them. When a

group of persons is collected, it is their responsibility to identify a

person who is not a member of their group, but has intruded their

group and gets indulged in unlawful activities, for the reason that they

better know, understand and identify members of their own group. If

those who became part of a protest march, procession etc., claim that

they do not identify each individual, still it is their responsibility to

ensure maintenance of peace and tranquility else any action of one or

more persons, who are part of such procession, whether with the

knowledge of others or not, will make no difference and all who are

part of said procession or protest march, etc. will be equally

responsible. No one can claim that he can take out a procession with a

gathering of hundreds of thousands persons, but still he has no

liability or responsibility to ensure that such group or collection of

people remain free from intrusion of miscreants. In our opinion,

principle of Rylands vs. Fletcher, (1868) 3 HL (LR) 330 can be

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extended to such cases also and those who intentionally and

knowingly do something which may turn out in a situation causing

loss of damage to public or private property or otherwise, harassment

to the members of general public, they are responsible for the

consequences caused by their own act and cannot shift responsibility

upon State.

43.So far as guidelines for taking out procession etc. are

concerned, we find that State is responsible to maintain law and order.

For this purpose, enough provisions are available under various

statutes. Whenever necessary, Executive also has been provided

statutory power of imposing restrictions, exercising power under

Section 144 of Cr.P.C. No challenge to the validity of such restriction

has been made in this case. Once restrictions are imposed, no one can

claim that he, individually or collectively is entitled to breach such

restrictions and still can claim that his action is lawful. Statutory

Authority when exercises a statutory power and certain restrictions are

imposed, such a statutory order is obligatory to be complied with by

all concerned. No one can claim that with impunity such restriction

can be violated, still he can claim immunity from legal action, for

what has been done by him, individually or collectively.

44.At this stage, we find that petitioner has not placed on record

any material to show that State has violated any statutory provision.

This Court does not exercise its jurisdiction under Article 226 in

absence of any cause of action or any reason to show that there is any

infringement of legal or fundamental right of an individual or group of

individual by the State. The stand taken by learned ACSC is very fair

and we do not find infringement or even lack of transparency on the

part of State, particularly when sufficient material is not on record to

draw any otherwise inference or conclusion.

45.In our view, therefore, the relief sought by petitioner in the

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present writ petition is not justified to be granted at this stage.

46.Writ petition is therefore dismissed in limine.

Order Date : 27.12.2019

I. Batabyal/AK/KA