Breach of peace a ‘ploy’ to make detentions, says plea in SC

The Supreme Court has agreed to hear academician and columnist Apporvanad Jha, who has submitted that equating the right of peaceful protest with a breach of peace is unwarranted and a ploy by the Central government and the Delhi Police to make preventive detentions.

The written submissions were filed additionally as part of a criminal writ petition moved by Mr. Jha, represented by senior advocate Nitya Ramakrishnan and advocate Akriti Chaubey, which challenged the legality of prohibitory orders issued by the authorities under Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).

A Bench headed by Chief Justice of India Surya Kant has agreed to list the writ petition along with others for hearing on November 19. Ms. Ramakrishnan said in court on October 15 that the submissions were backed by documentary proof placed on record.

If every call for a peaceful protest is considered a breach of peace by the authorities, no citizen can ever exercise the right of public demonstration, Mr. Jha submitted.

“Breach of peace is a state of affairs when a violent act or other criminal act is imminent,” Mr. Jha contended in additional submissions, detailing specific instances of preventive detentions, including that of minors by the Delhi Police, some of which span 24 hours.

The submissions said these detentions happened during the protests demanding the resignation of Chief Election Commissioner Gyanesh Kumar.

Mr. Jha said these were not occasions of breach of peace like “a fight between neighbours or armed gangs confronting each other and so on”.

“A declaration to hold a peaceful demonstration by unarmed citizens is hardly information of commission of a cognisable offence or a harbinger of a violent breach of peace so as to warrant preventive arrests,” he argued.

The academician said the modus operandi of the Central government, in conjunction with the Delhi Police, seems to be to first refuse permission to hold a demonstration, and then, by covering practically the whole of New and Central Delhi with prohibitory orders, to force an “illegality” or a violation of an order of a police officer and make preventive detentions.

He said the very fact that the police formally denotified Jantar Mantar as the ‘designated protest site’ through a Standing Order on October 12 was itself an admission that Jantar Mantar was in fact the formally designated protest site.

“Even the prohibitory orders under Section 163 BNSS dated August 23, that cover the ‘whole of Sub Division Parliament Street’ exclude ‘the exempted area at Jantar Mantar Road’. Despite the exemption being spelt out, the police irrationally and illegally blocked ingress and egress to the designated spot, and created an untenable situation by which people would technically be forced to breach the order only to get to the legally designated and exempted area,” the submissions reasoned.

In making these preventive detentions, what is being done is not merely restraining students, protesters, and ordinary citizens from accessing the designated protest spot, but actually herding them like cattle in the most inhuman way into buses and taking them to police stations, including faraway police stations, and manhandling them, seizing their mobile phones, and releasing them late at night or even the next morning, the submissions said.

“This form of detention for nearly 24 hours is completely illegal when no cognisable offence is even alleged to be in contemplation. Even violation of an order under Section 65 of the Delhi Police Act, 1978 only requires removal from the spot or production before a Magistrate within 24 hours. It does not per se allow detention for 24 hours. Even disobedience of an order of a public servant is a bailable offence. Therefore, the long hours of detention are completely uncalled for,” the submissions argued.

Terming the mass detentions ab initio illegal, Mr. Jha said it was evident that the police had “just assumed that detainees could be kept at least for 24 hours, even though there was no apprehension of any cognisable offence. Further, the seizure of mobile phones, and compelled disclosure of the passwords, was a completely unwarranted intrusion on privacy, as also the beating and injuries caused”.

The petitioner has urged the court to call for records from police stations and detention centres, and seek an explanation on these “misdeeds and direct action” against police personnel. He submitted that the police were liable to pay compensation for these “gross violations of rules”.