WPIL/2497/2019 of RAJAT GANGWAR Vs State of U.P. AND 4 OTHERS on 27 December 2019

Conclusion

1. Heard Sri Kunal Shah and Sri Abhinav Bhattacharya, Advocatesfor petitioner and Sri Nimai Das, learned Additional Chief StandingCounsel assisted by Sri B.P. Singh Kachhawah, Standing Counsel forrespondents.

2. Petitioner-Rajat Gangwar, has filed this writ petition claiminghimself 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 andSri 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 amandamus directing the Respondents to formulate guidelinesfor grant of permission of peaceful demonstrations after takinginto consideration the competing interests of various stakeholders.

(b) Issue a suitable order for setting up of ClaimsCommissioner in the light of the guidelines stipulated by theHon'ble Supreme Court in Destruction of Public and PrivateProperties v. State of A.P. and Others (2009) 5 SCC 212.

(c) Issue a writ, order or direction in the nature of a mandamusdirecting the Respondents to upload information on accessibleelectronic database with respect to detainees who have beenarrested in the aftermath of the protests that ensued in the State of Uttar Pradesh after the enactment of Citizenship AmendmentAct, 2019, status reports of the investigation/trials and providevisitation rights to their lawyers and friends, as per law.

(d) Issue any other suitable writ, order or direction, which thisHon'ble Court may deem fit and proper in the facts andcircumstances of the case;

4. Petitioner claims to espouse the cause of residents of State ofU.P. including peaceful protesters, persons who have suffered loss ofproperty and life due to protests, turning violent, and injured policepersonnel of State of U.P. Petitioner also seeks enforcement of variousguidelines laid down by Supreme Court in In Re: Destruction ofPublic and Private Properties vs. State of Andhra Pradesh andothers, 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) andOrs., 2018(10) SCC 713.

5. Brief facts stated in the writ petition are that, on 19.07.2016Citizenship (Amendment) Bill, 2016 was introduced in Lok Sabha andon 12.08.2016 it was referred to Joint Parliamentary Committee. Itwas passed by Lok Sabha on 08.01.2019 but due to dissolution of LokSabha, Bill lapsed. Later on Citizenship (Amendment) Bill 2019 wasintroduced on 09.12.2019 in 17[th] Lok Sabha and passed on10.12.2019. On 11.12.2019 Rajya Sabha also passed Bill. It receivedassent of President of India on 12.12.2012 and became Citizenship(Amendment) Act, 2019 (hereinafter referred to as “CAA, 2019”). Itis also stated in Para 15 of writ petition that vires of CAA, 2019 hasbeen challenged before Supreme Court by filing writ petitions underArticle 32 of Constitution of India. On 18.12.2019 Supreme Courtissued notices and has fixed 22.01.2020 for hearing. In the meantimeseveral protests ensued across the country which included protestsheld at Jamia Millia Islamia University, Delhi (hereinafter referred to

as 'JMIU') and Aligarh Muslim University, Aligarh (hereinafterreferred to as 'AMU'). In State of U.P. also similar protests ensued atLucknow on 19.12.2019 which turned violent resulting in damage topublic property as also loss of life and injuries to several persons.Print and Electronic Media have reported information of spreading ofsimilar protests which turned violent in different cities of State ofU.P., i.e., Aligarh, Meerut, Muzaffarnagar, Bijnor, Bulandshahr,Kanpur, Rampur, Gorakhpur and Varanasi, wherein about 17 personslost their life, to the best knowledge of petitioner. Police outpost andseveral private and government movable and immovable propertieswere vandalized and set ablaze. At some places stone pelting andfiring by belligerent protesters also took place. District authoritiesimposed restrictions under Section 144 Cr.P.C. but violating the samevarious protests which turned violent were raised. Protests continuedat different places in State of U.P. As per newspaper report therestrictions under Section 144 Cr.P.C. imposed on 20.12.2019 havebeen extended upto 31.01.2020. Chief Minister is also reported tohave stated that no permission was granted by State authorities toanyone to observe protest amidst operation of restriction underSection 144 Cr.P.C. Similar statement was made by Director Generalof Police, State of U.P. (hereinafter referred to as 'DGPUP'). It isfurther stated that though petitioner does not dispute that requirementof prior permission to exercise fundamental rights of peaceful protestsand peaceful assembly guaranteed under Article 19(1)(a) and 19(1)(b)of Constitution of India is valid restriction, but respondents-authoritiesunder the garb of restrictive orders, passed under Section 144 ofCr.P.C., cannot scuttle, efface or throttle fundamental rights ofpeaceful protesters and demonstrators. Their exists a duty on the partof 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 andpublic order. It is to be undertaken in the manner as stated by Supreme 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 ofAndhra Pradesh (supra); Mazdoor Kisan Shakti Sangathan vs.The Union of India (supra); and, Kodungallur Film Society andOrs. vs. Union of India (supra). State is under a dual obligation tobolster and foster fundamental rights of citizens under Article 19 ofConstitution. At the same time, it is under an obligation to ensurepublic order, tranquility and social order. Rights of citizens can beregulated with reasonable restrictions but cannot be prohibitedaltogether. However, State has failed in its obligation to secure lawand order and protect fundamental rights of citizens inasmuch as StateGovernment did not conceive of any guidelines qua granting/refusalof permission in the wake of operation of orders under Section 144Cr.P.C. State has failed to conceptualize guidelines for grantingpermission and regulating protesters. It is imperative upon State, as apart of regulative measures, to demarcate area, time slot of protest,identification etc. of protesters and credentials thereof, before grant ofany permission for observing protests, processions etc. State is alsounder obligation to deploy adequate security forces, provide medicalfacilities, drone photography/videography, availability of fire brigadesetc. It is also obligatory to deploy requisite strength of water cannonsto ensure peaceful procession and to overcome any untoward incident.

6. Some directions were issued in similar matter by a DivisionBench of Madras High Court in Writ Petition No. 36634 of 2019,Varaaki vs. Chief Secretary Tamil Nadu, decided on 22.12.2019and 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 beenwidespread destruction of public and private properties. The incident of violence has continued unabated for the past a few days and havegripped 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 policepersonnel, innocent citizens and protesters have sustained injuries.Some have lost lives. Public and private property have also beendamaged by certain miscreants and anti-social elements. Themiscreants have sabotaged peaceful protests and hindering the right offree speech of innocent citizens. They have also committed criminalacts qua private and public properties. It is imperative uponGovernment to assess damages caused to public and private property,by appointing a Claims Commissioner and thereafter to makeinvestigation into the liability. Print and Electronic Media reportshows that respondents have started identification of miscreants and torecover loss of public and private property, fixing liability andrecovering the amount of damages. However, a road map orprocedure qua assessment of damages has to be prepared in the lightof guidelines laid down by Supreme Court in In Re: Destruction ofPublic and Private Properties vs. State of Andhra Pradesh(supra).

8. Petitioner has also stated in Para 46 that respondents mustupload information on accessible electronic database with respect tothe detainees and provide visitation rights to their lawyers, familymembers and friends, as per law. Respondents-authorities after theprotest turned violent instead of devising a mechanism andparticipating with persons organising protests, have started a massiveunprecedented crackdown on activists and other persons, arresting anddetaining several of them. A number of activists including lawyershave also been detained by respondents.

9. Petitioner claims to have received telephonic calls in the evening of 21.12.2019, stating that some activists of Peoples Unionfor Civil Liberties (hereinafter referred to as 'PUCL') have beenarrested and detained in Lucknow and Muzaffarnagar.

10. One Mohd. Shoaib, Advocate was detained in Lucknow byrespondents and his whereabouts were not known to his kith and kin,resulting into filing of Habeas Corpus Writ Petition No. 36848 of2019 before Lucknow Bench of this Court, wherein an order waspassed on 21.12.2019 (copy of the said order has been placed onrecord as Annexure 9 to the writ petition). In Para 51 of the writpetition, it is stated that petitioner has received information fromcolleagues and other persons that various persons detained are facingsimilar predicaments and their whereabouts are not known to theirkiths and kins. In this regard, a reference is made to the cases ofShamim Ahmad, Shavez Ahmad, Abdul Haffez and Ibad Ahmad,whose whereabouts have not been communicated to their kiths andkins and in this regard, a letter dated nil (Annexure 10 to the writpetition) has been submitted by one Raees Jahan, wife of IrshadAhmad to the District Magistrate, Lucknow. In this backdrop, it hasbeen prayed that directions be issued as prayed in the writ petition,which we have quoted above.

11. Learned counsel for petitioner contended that peaceful protestand assembly is a part of fundamental right of speech and movement.Though reasonable restrictions may be imposed but fundamentalrights of protest and assembly or raising voice of dissent cannot beprohibited in an arbitrary manner. In the garb of taking action againstprotest march, which turned violent, State authorities cannot penalizeinnocent protesters, ignoring the fact that violent activities have beendominated by some miscreants and anti-social elements who haveintruded the peaceful protests. Instead of identifying those miscreantsand anti-social elements, State is illegally arresting and detaining innocent people, attaching their properties, denying information,which they, under law, are bound to disclose, to their kith and kin. Alarge number of residents of State of U.P. are being denied theirfundamental rights of free movement etc. at the pretext of arrest anddetention. He further submitted that various guidelines and preventiveactions which State authorities are obliged to observe in suchcircumstances as laid down by Supreme Court in various authoritiesare being ignored and blatantly, being violated. Since the number ofsuch persons is so much that everyone cannot approach this Court,hence, this writ petition for protection of their rights in the hands ofarbitrary 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. SinghKachhawah, Standing Counsel, after receiving instructions, has statedthat as on 25.12.2019 in all, 1022 persons have been arrested atdifferent places and details thereof are as under :-

13. Hathras214.Kanpur Nagar2415.Fatehgarh716.Jhansi417.Lucknow17018.Raebareilly219.Sitapur1920. Ambedkarnagar621.Fatehpur122.Pratapgarh523.Hamirpur824.Deoria1725.Gorakhpur526.Kushinagar2327.Sant Kabir Nagar128.Gonda129.Bahraich6630. Varanasi6831.Jaunpur332.Azamgarh1333.Mau2034.Bhadohi15Total1022

13. He has also placed before us a copy of letter dated 26.12.2019sent by the Additional Chief Secretary (Home) (hereinafter referred toas 'Add. CS (Home)') to the District Magistrates of Lucknow, Meerut,Hapur, Saharanpur, Rampur, Firozabad, Kanpur Nagar,Muzaffarnagar, Mau, Aligarh, Gorakhpur and Bulandshahar, directingthem to make assessment of loss of public and private property and take action for recovery of damages from responsible protesterscausing such damage, in accordance with Government Order dated27.04.2011, which was issued pursuant to Supreme Court's judgmentin In Re: Destruction of Public and Private Properties vs. State ofAndhra Pradesh (supra) and this Court's judgment in MohammadShujauddin vs. State of U.P. and others, 2011(1) ADJ 63. LearnedACSC further stated that after making due identification of guiltypersons i.e. after collecting video clipping, photographs etc. whichhave been prepared by individual residents of the affected area, mediaand police authorities etc., notices are being sent to those persons whoare identified prima facie, giving them opportunity to reply andthereafter, appropriate action is under process. He clearly stated thatwithout proper identification and ascertaining involvement ofindividual in destructive activities, causing damage to public andprivate property etc., no action would be taken by State against anyindividual who is otherwise innocent. Every care and precaution, asfar as possible, to the highest extent, is being taken by Stateauthorities in ensuring this objective.

14. We have heard parties at length. The entire genesis of disputeraised in this writ petition is Citizenship Act, 1955 (hereinafterreferred to as 'Act, 1955') and amendment made therein vide CAA,2019. It would, therefore, be appropriate to have a glimpse ofaforesaid statute.

15. Part-II of Constitution of India deals with subject of'Citizenship'. It has Articles 5 to 11. Article 5 provides that atcommencement of this Constitution, every person who has hisdomicile 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 lessthan five years immediately preceding such commencement, shall be a citizen of India.

16. Therefore, every person who had his domicile in territory ofIndia and born before 26[th] January, 1950 or any of his parents wasborn in the territory of India or the individual was residing in territoryof 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 5at 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 Indiafrom Pakistan. Giving overriding effect over Article 5, Article 5provides that a person who has migrated to territory of India fromterritory now included in Pakistan, shall be deemed to be a citizen ofIndia at the commencement of Constitution if (i) he or either of hisparents or any of his grandparents was born in India, as defined inGovernment of India Act, 1935 (as originally enacted); and (ii) in casewhere such person has so migrated before 19[th] July, 1948, he has beenordinarily 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 officerappointed in that behalf by Government of the Dominion of India onan application made by him therefor to such officer before thecommencement of Constitution in the form and manner prescribed byGovernment.

18. There is a proviso also that no person shall be so registeredunless he has been resident in territory of India for at least six monthsimmediately preceding the date of his application.

19. Article 7 talks of rights of citizenship of certain migrants toPakistan after 1[st] March, 1947. It is stated that a person, who has after1[st] March, 1947, migrated from territory of India to territory nowincluded in Pakistan, shall not be deemed to be a citizen of India.

There is a proviso, however, providing that a person who had somigrated to Pakistan, but then returned to territory of India under apermit for resettlement or permanent return issued by or under theauthority of any law, every such person shall, for the purposes ofArticle 6 (b), be deemed to have been migrated to territory of Indiaafter 19[th] July, 1948. Article 7 has been given overriding effect overArticles 5 and 6 both.

20. Article 8 talks of right of citizenship to certain persons of Indianorigin residing outside India. Article 9 talks of loss of citizenship ofIndia if any person has voluntarily acquired citizenship of any foreignState. Article 10 provides that every person who is or is deemed to bea citizen of India under any of the provisions of Part-II ofConstitution, shall, subject to the provisions of any law that may bemade by Parliament, continue to be such citizen. Article 11 providesthat nothing in the foregoing provisions of Part-II shall derogate fromthe power of Parliament to make any provision with respect toacquisition and termination of citizenship and all other mattersrelating to citizenship.

21. Considering the above provision, in State of U.P. and othersvs. Shah Mohammed and others, (1969) 1 SCC 771, Court held thatConstitution does not intend to lay down a permanent orcomprehensive law relating to citizenship of India. Power to enactsuch a law is left to Parliament and it is not fettered by Articles 5 to10. It is competent for Parliament, in exercise of power conferred byArticle 11, to take away or effect citizenship already acquired underother articles of Part-II of the Constitution. This is what was also heldin 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 lawin respect of citizenship is within the ambit of Parliament.

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 bynaturalisation'. Section 8 confers power upon any citizen to renunciatecitizenship and Section 9 talks of termination of citizenship. Section10 talks of 'Deprivation of citizenship' in certain cases. Section 13makes a provision for Certificate of Citizenship in case of doubt,which can be issued by Central Government. It provides that suchcertificate, when issued, shall be conclusive evidence that person wascitizen on date of such certificate, but this is without prejudice to anyevidence that he was such a citizen at an earlier date. Section 16confers power upon Central Government to delegate its powers,except Sections 10 and 18, to such officer or authority as may be sospecified. Section 18 confers power of making rules upon CentralGovernment.

24. Initially, there were four Schedules appended to Act, 1955, butFirst and Fourth Schedule having already been omitted, now, thereremained only two schedules i.e. Second and Third Schedule. TheThird Schedule provides qualifications for naturalisation i.e. in thecontext of subject of citizenship governed by Section 6(1) of Act,1955.

25. After initial enactment, Act, 1955 has undergone fouramendments vide Act 65 of 1985, Act 6 of 2004, Act 32 of 2005 andAct 1 of 2015.

26. The first amendment of 1985 i.e. Act 65 of 1985 wasnecessitated 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 byAssam Accord.

27. The next amendment of 2004 was necessitated due to policyaccepted by Central Government for providing dual citizenship topersons of Indian origin belonging to certain specified countries. Itresulted in insertion of Sections 7A, 7B, 7C and 7D, which came intoforce on 3.12.2004, but these provisions have been substituted inorder to give effect the later modified policy of Government of Indiaby substitution of Section 7A to 7D w.e.f. 6.1.2015 vide Act 1 of2015.

28. The amendment of 2005 i.e. Act 32 of 2005 resulted inomission 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 hasresulted in amendments of Section 2(1)(b) by insertion of a Proviso,insertion of Section 6B, insertion of Clause (da) in Section 7D andalso insertion of Proviso after Clause (f) in Section 7D. It has alsoinserted Clause (eei) in Section 18 (2) and a Proviso in Clause (d) ofThird Schedule.

30. Section 2(b) of Act, 1955 defines “illegal migrant”. Earlierprovision was substituted by Act 6 of 2004 w.e.f. 3.12.2004, replacingClause (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 FirstSchedule, means a person who, under the citizenship ornationality law for the time being in force in that country, is acitizen or national of that country; "(c) "citizenship or nationality law", in relation to a countryspecified in the First Schedule, means an enactment of theLegislature of that country which at the request of theGovernment of that country, the Central Government may, bynotification in the Official Gazette, have declared to be anenactment making provisions for the citizenship or nationalityof that country:" (emphasis added)

The aforesaid Clauses (b) and (c) of Section 2 were substituted by Clause (b) w.e.f. 3.12.2004 and it reads as under :- (b) “illegal migrant” means a foreigner who has entered intoIndia–

(i) without a valid passport or other travel documents andsuch other document or authority as may be prescribed by orunder any law in that behalf; or

(ii) with a valid passport or other travel documents and suchother document or authority as may be prescribed by or underany law in that behalf but remains therein beyond thepermitted period of time; (emphasis added)

32.2019 and it reads as under :-

Now, after Section 2(b)(i), a Proviso has been inserted by CAA, “Provided that any person belonging to Hindu, Sikh,Buddhist, Jain, Parsi or Christian community fromAfghanistan, Bangladesh or Pakistan, who entered into Indiaon or before 31[st] day of December, 2014 and who has beenexempted by the Central Government by or under clause (c)of sub-section (2) of section 3 of the Passport (Entry intoIndia) Act, 1920 or from the application of the provisions ofthe Foreigners Act, 1946 or any rule or order madethereunder, shall not be treated as illegal migrant for thepurposes of this Act;” (emphasis added)

33. Section 6B has been inserted for making special provisions asto 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 byit in this behalf may, subject to such conditions, restrictionsand manner as may be prescribed, on an application made inthis behalf, grant a certificate of registration or certificate ofnaturalisation 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 insection 5 or the qualifications for naturalisation under theprovisions of the Third Schedule, a person granted thecertificate of registration or certificate of naturalisation under sub-section (1) shall be deemed to be a citizen of India fromthe date of his entry into India.

(3) On and from the date of commencement of the Citizenship(Amendment) Act, 2019, any proceeding pending against aperson under this section in respect of illegal migration orcitizenship shall stand abated on conferment of citizenship tohim:

Provided that such person shall not be disqualified formaking application for citizenship under this section on theground that the proceeding is pending against him and theCentral Government or authority specified by it in this behalfshall not reject his application on that ground if he is otherwisefound qualified for grant of citizenship under this section:

Provided further that the person who makes theapplication for citizenship under this section shall not bedeprived of his rights and privileges to which he was entitledon the date of receipt of his application on the ground ofmaking such application.

(4) Nothing in this section shall apply to tribal area ofAssam, Meghalaya, Mizoram or Tripura as included in theSixth Schedule to the Constitution and the area covered under"The Inner Line" notified under the Bengal Eastern FrontierRegulation, 1873.” (emphasis added)

34. A perusal of Section 6B(4) shows that it has not been extendedto tribal area of Assam, Meghalaya, Mizoram and Tripura as includedin Sixth Schedule of Constitution and also to area covered under “TheInner Line” notified under Bengal Eastern Frontier Regulation, 1873.

35. Section 7D of Act, 1955 conferred power upon CentralGovernment to cancel registration granted under Section 7A(1) toOverseas Citizen of India cardholders. Such power can be exercisedby Central Government if it is satisfied that the conditions provided inClauses (a) to (f) mentioned therein exist. By inserting clause (da),one more such condition has been provided in Section 7D. Further, atthe end of Section 7D i.e. after Clause (f), a Proviso has been inserted that no order shall be passed under Section 7D without givingreasonable opportunity of being heard to the persons concerned i.e.Overseas Citizen of India cardholders. Section 18 is Rule-makingpower conferred upon Central Government and by inserting Clause(eei) in sub-Section (2) of Section 18, one more subject has beenadded in respect whereof rules can be framed by Central Government.Clause (eei) reads as under :- “(eei) the conditions, restrictions and manner for grantingcertificate of registration or certificate of naturalisation undersub-section (1) of Section 6B;”

36. As we have already said that Third Schedule deals withqualification for naturalisation with reference to Section 6(1) of Act,1955. By inserting a Proviso in Clause (d), a modified qualificationhas been provided with respect to period of residence or service ofGovernment in India and instead of 11 years provided in Clause (d), ithas been reduced to 5 years for the category of persons mentioned insaid proviso.

37. The statement of object and reasons for CAA, 2019 providesthat in order to give protection to the persecuted members of certainminority 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 amatter of policy, while contemplating equality in all respects to theresidents of India, still have protected on certain aspects, rights ofminorities by virtue of Articles 29 and 30 of Constitution. Similarly,Parliament in its policy of protecting certain minority communities ofthree neighbouring countries, who are being persecuted thereat onaccount of the fact that they are religious minorities in those countries, have desired to provide protection to such persecuted persons andtherefore aforesaid amendments have been made by CAA, 2019. Hestated that earlier also, when dual citizenship to persons of IndianOriginwas contemplated and given effect to by Amendment Act 6 of2004, it was confined to Indians belonging to certain specifiedcountries, but at that time also, persons of Indian Origin of Pakistanand Bangladesh were excluded. When Amendment Act 32 of 2005was enacted, exclusion of Pakistan and Bangladesh continued for thepurpose of dual citizenship. He urged that selection of countries waswithin the realm of Parliament and made in accordance with policy.This time, when three countries have been chosen, integral reason isto protect continuous persecution of members of certain minoritycommunities in the aforesaid countries only on account of their beingreligious minorities.

39. However, We need not go in further details of this aspect for thereason that neither rational of the aforesaid amendment is up forconsideration before this Court nor anything has been argued on thisaspect, but reference to the aforesaid provisions have been made onlyto understand the backdrop of large-scale protest, agitation andprocessions which have erupted, giving rise to the present writpetition. We are also informed that Supreme Court is already ceasedwith this matter.

40. Learned counsel for the petitioners stated that protest andprocession is against discriminatory amendment based on religion,inasmuch as, members of other religion residing in aforesaid threecountries viz. Pakistan, Bangladesh and Afghanistan, who do notbelong to religions mentioned in the provisions, added by way ofamendment by CAA, 2019 have been singled-out, only on the groundof religion, which is not permissible in the Constitution and it is perse arbitrary and discriminatory, hence, to oppose this discrimination

founded only on religion, a large number of people at different places,have protested, taken out processions, which have resulted at someplaces, some violence and destructive activities. It is contended thatpetitioner is not, either supporting the amendment or opposing it; he isalso not looking into genuineness of protest, march and processionstaken out by individuals or groups of people, but what he is concernedabout, is that every individual has a fundamental right of speech,assembly and movement and such fundamental right of individualscannot be thwarted away by Executives by means of either resortingto restrictive provisions like Section 144 Cr.P.C. or by involving suchindividuals in various criminal cases, etc. He said that individualfundamental rights are being breached with impunity by resorting toillegal arrest and without following guidelines laid down by SupremeCourt in the matters of arrest, etc. in Joginder Kumar vs. State ofU.P. and others 1994(4) SCC 260, which read as under :

“1. An arrested person being held in custody is entitled, if he sorequests to have one friend, relative or other person who isknown to him or likely to take an interest in his welfare told asfar as is practicable that he has been arrested and where isbeing detained.

2. The Police Officer shall inform the arrested person when heis brought to the police station of this right.is brought to the police station of this right.

3. An entry shall be required to be made in the Diary as to whowas informed of the arrest. These protections from power mustbe held to flow from Articles 21 and 22(1) and enforcedstrictly.”was informed of the arrest. These protections from power mustbe held to flow from Articles 21 and 22(1) and enforcedstrictly.”

41. Per contra, Sri Nimai Das, learned Additional Chief StandingCounsel stated that State has taken all precaution and care to protectfundamental right of every individual, but simultaneously, it has notallowed and cannot allow the so-called “protesters” to breachfundamental rights of other innocent peaceful residents. State isobliged to protect life, liberty including property of such people. State

is also obliged to ensure non-infringement of their fundamental rightsof movement, speech, assembly, etc. by creating obstruction,destruction and damage in various ways by such Protesters. Individualrights of non protesters and also protecting their property involvesfundamental rights of non-protesters. He said that State has made allattempts to keep a balance in maintaining all such rights, but whereprotesters and processionists have crossed the limit of lawful andpeaceful protest and demonstration and their act has entered into therealm of offence or criminal activity, State Authorities are bound andthey have actually intervened at that stage to prevent commission ofoffence or unlawful activities. Where breach of law has continued andwent unabated, State has taken all permissible steps includingdetention and arrest of persons indulged in such activities. He statedthat wherever necessary, even temporary detention was resorted to andas soon as its necessity disappeared, those detainees were immediatelyreleased. He said that after verification of various material in the formof electronic and other evidence, identity of the persons has beenverified and thereafter, action has been taken, which includesimposition of damages and also initiating criminal proceedings. Hesaid that procedure for assessment of damage to public and privateproperty has been laid down in relevant Government Order and that isbeing strictly followed. Every care is being taken so that no innocentperson, who is not indulged in the wrong activities, is harassed,penalised or otherwise involved in various proceedings. He said thatthe status of a person is of no relevance. Merely for the reason that aperson is a professional or a businessman or serviceman etc. it wouldnot guide the authorities to see whether they should act against him ornot even if such individual is indulged in illegal and unlawfulactivities. Every violator of law has to be dealt with equally. Theillustration given by petitioners about Mohd. Shoaib, Advocatearrested by police would not help the petitioner in any manner, for the reason that a person even if an advocate, would not get a licence toindulge in unlawful, illegal and destructive activities. In order to enjoyown individual fundamental right of speech, movement, assembly, noperson, even if he is an Advocate, has a licence, liberty or privilege toobstruct other innocent residents and citizens of State of U.P. inexercise of similar rights of their own self and property. If anyproperty, public or private is damaged by anyone in the garb ofexercising his fundamental right, such right ceases to be a validexercise or enjoyment of fundamental right but becomes an illegal,unlawful activity, which is punishable and actionable in the mannerprovided in law.

42. The general propositions, as argued above on both sides, wefind have consensus that fundamental right of speech and includesright of assembly or right of taking peaceful procession. A voice ofdissent is fundamental in a democracy. A person, who raised his voiceof dissent, cannot be held guilty of any illegal or unlawful activities solong as dissent is peaceful, maintains harmony, does not disturb publictranquility and also protects similar fundamental rights enjoyed byothers, who are not part of such processions or protests. Further, if aperson 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 ofothers of free movement and therefore, such persons taking outprocessions are also under an obligation to take care that their exerciseof fundamental right does not infringe fundamental rights of others asboth have to be maintained and enjoyed simultaneously. Fundamentalright of an individual or group of individuals cannot override similarfundamental rights of others, who are similarly situated, though notparticipants of such protest or procession. A march on public road hasto take care that free movement of traffic is not obstructed, other

people's fundamental rights of movement is not obstructed, necessaryservices like ambulance, fire brigade, etc. are not obstructed. If anysuch obstruction takes place, it cannot be said that those, who are partand parcel of alleged protest or procession, are simply exercising theirfundamental right, inasmuch as, exercise of fundamental right doesnot mean obstruction, defeat and infringement of fundamental rightsof others. Further, those who carry out a procession on public road orpublic passage or path or public place, are responsible to ensure thatno person i.e. the alleged miscreant or criminal element, intrude andbecome part of said procession or collection of such individualsprotesting so as to cause any damage or destruction to public orprivate property. No defence is available to those who are collectingand not able to keep out such miscreants or criminal elements frombecoming part of their own procession and thereby to contend thatthey have not done anything and it was responsibility of State to siftout those miscreants and criminal elements and detain them. When agroup of persons is collected, it is their responsibility to identify aperson who is not a member of their group, but has intruded theirgroup and gets indulged in unlawful activities, for the reason that theybetter know, understand and identify members of their own group. Ifthose who became part of a protest march, procession etc., claim thatthey do not identify each individual, still it is their responsibility toensure maintenance of peace and tranquility else any action of one ormore persons, who are part of such procession, whether with theknowledge of others or not, will make no difference and all who arepart of said procession or protest march, etc. will be equallyresponsible. No one can claim that he can take out a procession with agathering of hundreds of thousands persons, but still he has noliability or responsibility to ensure that such group or collection ofpeople remain free from intrusion of miscreants. In our opinion,principle of Rylands vs. Fletcher, (1868) 3 HL (LR) 330 can be extended to such cases also and those who intentionally andknowingly do something which may turn out in a situation causingloss of damage to public or private property or otherwise, harassmentto the members of general public, they are responsible for theconsequences caused by their own act and cannot shift responsibilityupon State.

43. So far as guidelines for taking out procession etc. areconcerned, we find that State is responsible to maintain law and order.For this purpose, enough provisions are available under variousstatutes. Whenever necessary, Executive also has been providedstatutory power of imposing restrictions, exercising power underSection 144 of Cr.P.C. No challenge to the validity of such restrictionhas been made in this case. Once restrictions are imposed, no one canclaim that he, individually or collectively is entitled to breach suchrestrictions and still can claim that his action is lawful. StatutoryAuthority when exercises a statutory power and certain restrictions areimposed, such a statutory order is obligatory to be complied with byall concerned. No one can claim that with impunity such restrictioncan be violated, still he can claim immunity from legal action, forwhat has been done by him, individually or collectively.

44. At this stage, we find that petitioner has not placed on recordany material to show that State has violated any statutory provision.This Court does not exercise its jurisdiction under Article 226 inabsence of any cause of action or any reason to show that there is anyinfringement of legal or fundamental right of an individual or group ofindividual by the State. The stand taken by learned ACSC is very fairand we do not find infringement or even lack of transparency on thepart of State, particularly when sufficient material is not on record todraw any otherwise inference or conclusion.

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