Manas Dasgupta
NEW DELHI, Oct 11: Taking a strong view of the virtual paralysis of the public transport system in Delhi to prevent people from responding to the Cockroach Janta Party (CJP) call for protest demonstration demanding ouster of the Chief Election Commissioner (CEC) Gyanesh Kumar, the Supreme Court on Sunday directed the Centre and the Delhi Police to remove all barricades placed in view of protest unless “absolutely warranted” and ensure that metro services function normally in the national capital.
Further, the court directed that no internet disruptions should take place in the national capital.
A day after mass detentions and a “curfew-like” clampdown on civil rights, which senior lawyers compared to the 1975 Emergency, the Supreme Court convened what it called an “extraordinary, exceptional” Sunday hearing to direct the Union government and the Delhi Police to stop illegal detentions and allow free and smooth movement of people and traffic, as well as the operations of Metro and rail services, but “subject to law and public order.”
A two-judge bench comprising Justices Joymalya Bagchi and V Mohana which agreed for a special hearing on Sunday, also said the cops must ensure that the movement of people was restored to normal, noting that the public cannot be prevented from carrying out work related to their professions. Moreover, the court also directed that those gathering peacefully shall not be illegally detained. The apex court, however, permitted “necessary restrictions,” if needed, to maintain law and order.
It also told the authorities to withdraw the enforcement of Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 which bans large gatherings. “We have been informed that a notice under Section 163 has been imposed in and around the Supreme Court. We direct the authorities to take down the restriction so that there is no apprehension of access to justice with regard to ingress and egress to the Supreme Court or any other court,” a bench of Justices Joymalya Bagchi and V Mohana said.
The court also issued a notice to Delhi Police, Union Home Secretary and the Delhi Metro Rail Corporation (DMRC) over curbs in capital despite its earlier order, seeking a response till Tuesday. Although, the court acknowledged that Solicitor General Tushar Mehta, appearing for the Delhi Police, has assured that metro and rail services are functioning normally, and internet services have been restored in capital.
“The issue is to what extent the restrictions imposed by the police fall within the ambit of Article 19(2) of the Constitution,” the court observed. “You have the right to protest; there is no dispute over that. However, the manner in which the protest is conducted must be in accordance with the provisions of the Police Act. You cannot claim that your right to protest takes precedence over the Police Act.”
“All of you present here, if you are seriously interested in public welfare, please undertake that you will all protest peacefully and not instigate any other person,” Justice Mohana said before the hearing concluded. The next hearing will take place in the court on Tuesday.
The special bench issued notice to Union Home Secretary Govind Mohan, Delhi Police Commissioner Anurag Kumar and Delhi Metro Rail Corporation (DMRC) chairperson D. Thara on a petition filed by advocate Shailendra Mani Tripathi seeking contempt action against them for allegedly violating an October 9 order which barred any “outright prohibition on the movement of Metro trains” and public transport on October 10.
The court ordered the police to forthwith review the imposition of barricades on public roads, ensure that Internet connectivity was not disturbed, and lift prohibitory orders issued under Section 163 BNSS in and around the Supreme Court and other courts of law in the capital to facilitate litigants’ access lawyers and justice. The court did not explicitly comment on the legality of the prohibitory orders.
Justice Bagchi, dictating the order, observed there would be no detentions except by law outside the four-km prohibitory zone in central Delhi, which includes Jantar Mantar, the designated site for protests. The court said people should be allowed to assemble peacefully outside the restricted zone. All people, including journalists and lawyers, must be allowed to perform their professional duties, the court directed.
The court’s repeated emphasis on the “subject to law and order” rider signalled a deliberate balancing act of upholding constitutional protections against illegal detention and securing rights to free movement, access to courts and Internet connectivity, while preserving the State’s power to enforce reasonable restrictions to maintain public order.
The morning began with the Bench changing courtrooms at the last moment, before 10.30 a.m., due to overcrowding. The video-conferencing link was not operational due to a “glitch” and was later found to be chock-a-block with viewers. The build-up to the hearing was punctuated by verbal confrontations over seating arrangements for senior police officers present in the courtroom. One of the lawyers, who had been detained on Saturday urged his colleagues to offer the women police officers seats, saying, “They are our guests.”
Lawyers described a State crackdown that swept up thousands of people, from young students and senior citizens to professionals, journalists, and activists. The detainees were taken in police vehicles to pre-arranged centres in an operation aimed at preventing them from gathering to demand the resignation of Chief Election Commissioner Gyanesh Kumar. The protests were sparked by the deletion of millions of registered voters across the country during the Special Intensive Revision of electoral rolls.
“Yesterday, we were one step away from a Police State. Protect the right of citizens to peacefully protest in the capital city,” senior advocate Shadan Farasat, who was dragged into a police van and detained for hours on Saturday told the court.
Senior advocate and petitioner-in-person Menaka Guruswamy asked the government how many people were detained on October 10. “It is not just that there was no free movement allowed; it is not just that Opposition leaders were picked up from their homes; it is not just that protestors were hurled into vans and driven away by police officers without name tags…
“It is about young people taking to peaceful protests because they think the electoral system is not free and fair. Is this an undeclared Emergency? What is at stake here is whether citizens can peacefully protest. The last time we came to court against a situation like this was 50 years ago during the Emergency. Has Article 19 been suspended? If so, this is done only during the Emergency,” Ms Guruswamy submitted.
Senior advocate Gopal Sankaranarayanan said the Emergency had reached our doorsteps. “A board advertising the prohibitory order is fixed outside this very court as we speak,” he said. The court ordered its removal immediately. Senior advocate K.K. Venugopal recounted how a junior colleague was detained by a police team right outside the Supreme Court and driven 11 km away for no apparent reason.
Solicitor General Tushar Mehta, appearing for the Union government and the Delhi Police along with Additional Solicitor General S.V. Raju, admitted that protesters were removed at 2 p.m. and released at 6 p.m. on October 10. “On the question of the legality of the arrests, it is for Your Lordships to decide. I will have to file a reply to the petitions filed in court,” he said.
He maintained, on instructions from the government, that there was “zero reduction in the total volume of Metro service.” “Of the 303 Metro stations in Delhi, entry and exit were restricted to 45 stations on October 10. If one station was closed, the neighbouring one was open. Today, all the stations are open. Internet was restored last night itself,” he said to loud guffaws from the courtroom.