Gujarat HC quashes Ahmedabad police's repeated use of section 144

Ahmedabad: In a significant ruling, the Gujarat high court has quashed the Ahmedabad police commissioner's notifications for repeated imposition of section 144 of CrPC and section 37 of Gujarat Police Act (ACT) which prohibit assembly of four or people without police permission.

The Ahmedabad police had been using this "unique mechanism" for years to deny civil rights groups permission to hold protests against government decisions, citing potential law and order issues. 

Justice M R Mengdey passed a detailed order on December 4, while holding the prohibitory notifications issued by Ahmedabad police as invalid. The court quashed all notifications while observing that the police didn't follow the procedure.

 "...the Respondent Authorities are hereby directed that, in future, while exercising such powers available under BNSS or Section 37 of the G.P.Act, due care shall be taken for adhering to the procedural aspects and the inherent safeguards required for exercising such powers and the Notifications / Orders issued under these provisions shall be given wide publicity on social media to make the public at large aware about it," justice Mengdey stated in the order.

The order came six years after a petition was filed by a group of citizens through advocate B S Soparkar. Among the petitioners were professors from Indian Institute of Management, Ahmedabad (IIMA) including Navdeep Mathur, Ankur Sarin, professor at Ahmedabad University Raghvan Rajan, and businesspersons Archana Shah and Sanjiv Shah. They had been denied permission to protest against the Citizenship Amendment Act back then. The petitioners had sought the court's intervention to quash these notifications to enable the residents of Ahmedabad to exercise their right to freedom of expression, right to peaceful assembly as well as right to move freely under Article 19 (1) of the constitution. They had said that prohibitory notifications issued under section 144 and section 37 of GPA were being issued in a "routine manner."

Their petition mentioned that since 2016, 64 such notifications had been issued that barred assembly of more than four persons and another set of 61 notifications were related to prohibition of "singing songs, playing music, displaying pictures, symbols and placards in public." The police had justified issuance of notification citing law and order issues. The court order stated that the power to issue such notifications were required to be used to "overcome the emergent situation" such as riots or unrest leading to disturbance of public tranquillity. It said that the authorities were required to exercise these powers by giving reasons for the same and since exercising powers under section 144 of the CrPC affects fundamental and constitutional rights of a class of citizens, such exercise "needs to be transparent."

The order said that the authorities didn't follow the safeguards and procedures prescribed in the law and used sub-section (2) of section 144 of CrPC that empowers authorities to take ex parte decisions in case of emergency. The order held that the notification orders issued by the Ahmedabad police didn't state such an emergent situation when they were passed.

"There is nothing on record to indicate that the Respondent authorities had even taken recourse to the other measures and it was only upon their failure that the powers in question were exercised," reads of the order.

The petitioners had stated that Ahmedabad police authorities continued to issue notifications under section 144 one after the other and didn't get sanction from the state government as mandated under this CrPC.

Under section 144 no order remains valid for more than two months and under Gujarat Act, no such prohibition shall remain in force after 15 days without sanction of the state. The court has held that "authorities have clearly circumvented the said provision by issuing the notification one after the other." 
During the course of hearing, the petitioners had also submitted a recent notification dated November 3. The commissioner office had described reasons behind issuing the order as "incidents have been recorded in the areas of certain police stations of Ahmedabad city, where the accused gathered with weapons like sword, knife, dagger, iron pipe etc. with an intention of committing offence of murder, attempt to murder or causing grievous injuries...."

Justice Mengdey held that the notification didn't have details of areas and time of occurrences and the commissioner "prevented the residents of the entire city from doing certain acts." The court said that "these powers are required to be exercised only when the other measures available to the authority failed.

The court held that it was the duty of police to prevent rogue elements from creating unrest and appropriate action was required. "But, instead of doing so, by issuing the Notification in question, the office of the Commissioner of Police, Ahmedabad City has curtailed the  constitutional right of the citizens of India, who are residing in Ahmedabad or are visiting Ahmedabad of raising a legitimate protest," stated the order.

The court quashed this notification by observing that the authorities concerned "miserably failed in demonstrating any such rationale and proximate connection or nexus between the prohibition sought to be imposed with the necessity for prevention of public order." It added that the authorities used the power "in utter disregard of the safeguards provided for exercise of the powers in question."

The court also quashed the validity of notifications issued in the past and said that individuals like the petitioners could face prosecution for violating them. The court also directed the authorities to give wide publicity to such notifications on platforms such as social media so that citizens are informed.