Bombay high court says no to blanket ban on police detentions amid anti-CEC stir; assures relief in specific cases

The petition further alleged that the police neither produced any arrest memo, nor communicated the grounds of arrest before detaining people.

The Bombay High Court on Tuesday refused to issue blanket orders restraining the police from detaining protesters seeking the removal of chief election commissioner (CEC) Gyanesh Kumar over alleged election malpractices, but said it would ensure that no person is illegally detained in instances brought to its notice.

People, along with Maharashtra Navnirman Sena (MNS) and Shiv Sena (UBT) workers, held a silent protest at Shivaji Park in Dadar, Mumbai, demanding Chief Commissioner Gyanesh Kumar's resignation (Raju Shinde/HT Photo)

“We cannot straight away say no detention at all,” the division bench of Chief Justice Mahesh Chandra Tripathi and Justice Advait Sethna said while hearing a public interest litigation (PIL) filed by advocate and activist Sagar Kantilal Devre, questioning the alleged illegal detention of protesters during the anti-CEC protests held in the city on October 10 and 11.

The judges, however, asked Devre to bring on record specific cases of illegal detention.

“We will take care of the issue, but obviously we will not permit this (illegal detention). Each and every example needs to be brought on record,” the court said, posting the matter for further hearing on October 19.

The petition further alleged that the police neither produced any arrest memo, nor communicated the grounds of arrest before detaining people.

“The larger issue affects every resident of Mumbai. If the police may stop, lift and carry away any person walking on a public road because a protest is happening somewhere in the city, or because his name once appeared in an FIR earlier, no citizen can move freely on the streets of this city. That is a direct violation of the Constitution of India,” the petition said.

A transparent probe is necessary to identify detainees, the legal grounds and duration of their detention, whether family members and legal counsel were informed, whether arrest memos were prepared, and whether the force used against them was necessary and proportionate.

“Neither preventive arrest nor the power to disperse an assembly authorises indiscriminate apprehension of persons merely because a protest is anticipated, without satisfying the applicable statutory requirements and assessing the circumstances of the individual concerned,” the petition said.

Among the reliefs sought by Devre is a declaration from the court that indiscriminate detention of peaceful protesters is unconstitutional. Those named in FIRs which have been quashed shall not be searched for, called, detained, restrained or treated as suspects; police records and CCTV footage should be preserved and produced, legal grounds for detentions must be disclosed, and an inquiry conducted into alleged use of force, the petition said.