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Right to protest fundamental in democratic polity: HC in north-east Delhi riots case

‘Sole act of protesting should not be employed as a weapon to justify the incarceration of those who are exercising this right’

 

The right to protest and express dissent is a right which occupies a fundamental stature in a democratic polity and the sole act of protesting should not be employed as a weapon to justify the incarceration of those who are exercising this right, the Delhi High Court said on Friday while granting bail to five persons in a north-east Delhi riots case.

Justice Subramonium Prasad granted bail to Ms. Tabassum, a married woman with two minor children, who was arrested in October 2020. The High Court also granted bail to Suvaleen, Furkan, Mohd Arif and Shabad Ahmed, who were arrested between March and May in 2020.

All five persons were arraigned as accused in connection with the death of a Head Constable during the north-east Delhi riots.

“When there is a crowd involved, at the juncture of grant or denial of bail, the court must hesitate before arriving at the conclusion that every member of the unlawful assembly inhabits a common intention to accomplish the unlawful common object,” Justice Prasad observed.

“There cannot be an umbrella assumption of guilt on behalf of every accused by the court, and every decision must be taken based on a careful consideration of the facts and circumstances in the matter,” the judge said.

Opposing the bail plea, Additional Solicitor General S.V. Raju stated that on the morning of February 24, 2020, a crowd carrying various weapons such as dandas, lathis, baseball bats, iron rods and stones, convened at the main Wazirabad Road and refused to pay heed to the orders of senior officers and the police force.

Mr. Raju stated that the crowd soon got out of control and started pelting stones at the police officers, and resultantly, more than 50 police personnel suffered injuries and Head Constable Ratan Lal was shot dead. Mr. Raju added the protestors turned violent, burnt private and public vehicles as well as other properties in the vicinity, including a petrol pump and a car showroom.

Justice Prasad, however, remarked, “The applicability of Section 149 IPC (unlawful assembly), specifically read with Section 302 (murder), cannot be done on the basis of vague evidence and general allegations.”

The judge noted that the five persons had been added as an accused by way of charge-sheet and that none of them had been explicitly caught on any CCTV camera in connection with the crime.

“It is egregious and against the principles enshrined in our Constitution to allow an accused to remain languishing behind bars during the pendency of the trial,” Justice Prasad said, adding, “Bail is the rule and jail is the exception.”

Justice Prasad also referred to numerous rulings of the Supreme Court where it held that courts need to be alive to both ends of the spectrum — the duty of the courts to ensure proper enforcement of criminal law, and the duty of the courts to ensure that the law does not become a tool for targeted harassment.

In the case of Mr. Ahmad and Ms. Tabassum, the High Court said that merely being one of the organisers of the protest and being in touch with other participants was also not sufficient to justify the contention that the two petitioners were involved in the pre-planning of the alleged incident.

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