Drawing a fine judicial line

The judges held that the holding of a peaceful demonstration by way of a protest is an exercise of the fundamental right of a citizen to free speech and expression. Of course, it is true the police had refused the prior permission sought by lawyers to demonstrate in the specified area brought under Section 144 was a proven fact. Also, the lawyers had not challenged the imposition of Section 144 CrPC by the police in that area from December 28 to February 25.

But in a throwback to Mahatma Gandhi8217;s civil disobedience movement, the judges declared that citizens have the 8220;right to violate a prohibitory order in a peaceful and nonviolent manner and to court arrest as a mark of their protest.8221; Finely balancing this with the demands of law and order, the judges stated that the 8220;police could have used only the minimum degree of force required to enforce the prohibitory order and to disperse the unlawful assembly.8221;

The issues that were highlighted in this case are the following: Did the police use force without sufficient provocation or justification? Did they use excessive force? Did they, before the use of force, observe the mandatory requirements of law by asking the assembly to disperse? Did the police commit any illegality or misconduct or criminal offence and did their conduct of the police officials warrants any legal action or disciplinary proceedings? The judges pointed out that these were disputed questions that were already before the Commission of Inquiry set up by the Centre and therefore they did not want to go into them.

But the Court declared that the Un-ion government contributed to the escalation of the situation and the hardening of attitudes. This was apparent in the fact that it had no explanation for approaching the Ch-ief Justice only on March 13, after the Prime Minister in the presence of the Union law minister, had agreed on February 25 to the setting up of a Co-mmission of Inquiry headed by a Supreme Court ju-dge. Further even though the notification appointing the Commission was issued on March 28, the High Court had to pass interim orders on April 7 to direct the government to make the Commission functional not later than April 25.

This judicial push got the Commission functional. But the Court had to ensure that the Commission would work in an environment that makes for as free, fair and impartial an inquiry as possible. For that purpose the judges laid down a charter of citizens8217; rights concerning inquiry commissions.According to the charter, police officers involved in an admitted excess must at least be transferred out from the present post; the post to which they are transferred must be of a kind that would not facilitate possible attempts to influence or prejudice the inquiry; the court can review and direct such transfers; the government has a duty to identify all such policemen and the court will direct such identification; the court has a right to be informed of the name of the officer who ordered the lathi charge or other action against the protesters; the court has a right to demand an explanation as to why an admitted lathi charge against protesters was not reported by the field officers to the monitoring officer and why it had not been mentioned in the wireless log-book which recorded the minute-to-minute field action; those police officers who admittedly use unwarranted force against protesters must be suspended immediately.

The Court found that the Union home ministry had ignored these factors. It clarified that transfers of such police officers will not be treated as a blot on their career, nor will it invite adverse opinion of their integrity and conduct. Accordingly DCP P. Nanda, ACP T.S. Bhalla and Vijay Mallick as well as SHO Mongia were directed to be transferred. The lawyers8217; strike was declared illegal, unethical and a violation of fundamental rights. The High Court can entertain a petition against private parties like lawyers or their associations for not addressing injustice wherever it is found. In this way, a compassionate Court has actually protected and enhanced the freedom of citizens from two powerful groups the police and lawyers.