How India’s courts have handled cases brought by detainees, police

On December 15, protests against the Citizenship Amendment Act broke out in and around Jamia Millia Islamia University. The Delhi police responded by storming the campus, ransacking the library, and brutalising the students. Police and paramilitary forces responded similarly to protests elsewhere, including in Uttar Pradesh, Delhi, Bengaluru, and Assam, resulting in a series of cases being filed in courts around the country.

Here’s the list of such cases and how the courts have handled them so far.

On December 16, the advocate Indira Jaising knocked on the doors of the Supreme Court of India, urging it to take suo motu cognisance of the police brutality. The court said, “We will determine the rights but not in this atmosphere of riots…the riots must be stopped.”

On December 17, the Supreme Court refused to intervene in the case, Alumni Association Jamia Millia Islamia University vs Union of India, pertaining to violence in Jamia Millia and Aligarh Muslim University, and asked the petitioners to approach the respective high courts given the absence of established facts. The petitioners approached the high courts in Delhi and Allahabad as directed.

The Delhi High Court issued a notice to the central government and the Delhi police directing them to file affidavits. The court, however, refused to grant interim protection from arrest to the students, and scheduled the next hearing for February 2. When the order was passed, cries of “shame” rang out in the courtroom. This resulted in a complaint of contempt and the court agreed to set up a committee to look into it.

In the Allahabad High Court, a writ petition was filed on December 19 against the state police and the paramilitary Rapid Action Force for storming AMU and unleashing violence on the students. The court directed the district magistrate to ensure medical and other aid was provided to the students. The court also directed the Uttar Pradesh government and the AMU administration to respond to a plea asking for a “court-monitored committee” to conduct a judicial inquiry into the crackdown on the students and their arbitrary detention. The next date of the hearing is January 22.

On December 17, the Gauhati High Court heard a PIL challenging the internet shutdown imposed in Assam in the wake of the protests against the citizenship law. It contended that the ban had not been reviewed to ascertain the necessity of its continuation. The PIL also challenged the constitutional validity of the Temporary Suspension of Telecom Services Public Safety or Public Emergency Act of 2017, under which the ban was imposed. The court, however, said it would confine its consideration for the moment to the necessity of the continuation of shutdown, and directed the Assam government to restore mobile internet services.

On December 19, the Calcutta High Court, in Sri Surajit Saha vs the State of West Bengal, directed the state government to remove all posts against the citizenship law from its social media accounts. It also allowed the Eastern Railway and the South Eastern Railway to submit reports, in the form of affidavits, detailing the damage caused to their properties, allegedly by the protesters, and listing measures to ensure smooth and safe travel. The next date of hearing is January 9.

The same day, during the nationwide protest against the citizenship law, activist Sadaf Jafar was arrested by the police in Lucknow and allegedly beaten up. She was denied bail by the chief judicial magistrate, however. The matter will be now be argued before a sessions court.

On December 20, a writ petition was filed in the Gauhati High Court questioning the legality of the summons issued by the Enforcement Directorate allegedly to prevent the petitioner, the proprietor of the daily Asomiya Pratidin, from covering the agitation in Assam. In an interim order, the court said no coercive action must be taken against the petitioner till January 3.

The same day, a batch of petitions was filed in the Karnataka High Court challenging the imposition of prohibitory orders under Section 144 of the CrPC by the Bengaluru police commissioner. The court said it would examine the legality of the orders on January 7. As interim relief, it directed the state government to consider fresh applications seeking permission for organising protests. 

On December 21, a Karkardooma District Court judge passed an order at 4.30 am, directing the Seemapuri police station head to allow lawyers to meet the people detained during a protest in the northeast Delhi neighbourhood. The court also directed the police to hand over copies of the FIR registered in connection with the case, and provide medical aid to the detainees. “Detention of minors in police station is a flagrant violation of law,” the order said.

The same day, a Tis Hazari Court in Delhi rejected the bail application of Chandrashekhar Azad, chief of the Bhim Army, and remanded him in custody for 14 days. The court held that substantial grounds for grant of bail were not made out. The police had filed an FIR against Azad for “instigating the crowd” and “provoking violence” in Daryaganj, Old Delhi. Another Tis Hazari Court sent in custody for two days the 15 accused persons arrested in the wake of a protest at Delhi Gate.

On December 21, a writ of habeas corpus was filed contending that the detention of Mohd Shoaib, a lawyer in Lucknow, was unlawful and demanding his release. Hearing the plea, the Allahabad High Court asked the Uttar Pradesh police to submit the arrest memo. It also told the government to produce records to show Shoaib had been medically examined after the arrest. The court further said the detainee should be allowed to meet his family and lawyer.

On December 22, a writ petition was filed in the Madras High Court asking the Tamil Nadu government to refuse permission to a protest planned for the next day by the state’s opposition parties. The court, as an interim measure, held that if the political parties go ahead with their protest despite the denial of permission, the police should film it, using drones if needed, so that any liability can be fixed on the leaders and not their followers.

On December 23, the Tis Hazari Court denied bail to the 15 persons held from Delhi Gate, arguing that no grounds for bail had been made out. It held that police barricades damaged in the protest were public property, so invoking the provisions of the Prevention of Damage to Public Property in this matter was prima facie justified.

On December 24, the Delhi High Court dismissed a PIL challenging the suspension of telecom services on December 19 in parts of the capital city. Since the services had been restored after a few hours, it pointed out, there was no point in admitting the PIL.

The same day, an application in the Karkardooma District Court sought medical care for one of the detainees who had been injured during the Seelampur protest, and had to have his thumb amputated. The court directed the jail superintendent to provide treatment without further delay to the detainee and file a report by December 25.

On December 27, a metropolitan magistrate in Delhi ordered the Bone Ossification Test to ascertain the age of a detainee who claimed to be a minor. He had been held in connection with the protest in Seemapuri. 

On December 31, in State vs Moinuddin, a Karkardooma court granted three weeks of interim bail on medical grounds to two people arrested by the Seelampur police for allegedly indulging in violence during the protest. The court also directed the Delhi Crime Branch to file a detailed reply to the bail application. 

The same day, the Karkardooma court gave bail to two detainees, Sajid Ali and Daniyal, observing that the video evidence produced by the prosecution didn’t show their involvement in violence and there were no other witnesses. Further, offences under Section 307 of the Indian Penal Code, relating to attempt to murder, were not attracted in this matter as the injuries sustained by the police personnel were simple.

On January 2, an additional sessions judge in Uttar Pradesh granted bail to the parents of a 14-month-old child and 56 other people who had been held for taking part in the citizenship law protest in Varanasi on December 19.

Amid this flurry of court orders, the Bar Council of India condemned the destruction of public property during the protests and demanded that anyone involved in violence must be brought to the notice of the authorities. It expressed solidarity with police and security forces, just weeks after launching a protest against the Delhi police and assaulting several of its personnel. 

The state’s response to the citizenship law protests has once again put the spotlight on the threat to freedom of speech, and raised questions about the conduct of police forces. If the crowd turns unruly, is it the job of the police to retaliate or to establish peace? Can an individual’s liberty be denied for taking protesting in a criminal justice system where bail is the rule and jail the exception?

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