Calcutta High Court Sets Aside Prohibitory Orders, Allows Junior Doctors To Stage Protest Near 'Durga Puja Carnival'

The Calcutta High Court has set aside prohibitory orders imposed under sections 163 (1) and (3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, by the commissioner of police, Kolkata

These orders were imposed to prevent the assembly of junior doctors, from protesting the brutal rape and murder of a trainee doctor at RG Kar medical college and Hospital, near the area where the State's Durga Puja immersion carnival was slated to be held.

A single bench of Justice Ravi Krishan Kapur passed the order after Chief Justice TS Sivagananam convened a special vacation bench upon a letter sent by the protesting doctors.

It was stated that they were challenging the refusal of the State respondents to permit the petitioners to conduct a “Droher Carnival” – Doctors and Citizens Assembly on 15 October, 2024 (today).

It was contended that refusal to grant a No Objection for the purposes of conducting the above Droher Festival as well as the issuance of the impugned order is in violation of the fundamental rights of the petitioners guaranteed under Article 19(1)(a) and 19(1)(b) of the Constitution of India.

The sweeping restrictions imposed on peaceful assembly and the freedom of expression as contained in the impugned order are unjustified, unwarranted and without any authority of law. In any event, it was stated that a blanket ban on such a nature is disproportionate and cannot be necessary for maintaining law and order.

On behalf of the State respondents, it was submitted that there is no reason at all as to why the petitioners should want to hold the “Droher Carnival” on 15 October, 2024, i.e. the very same day as to when the State is to conduct an “Immersion Carnival”. The choice of venue by the petitioners which is in close proximity to the venue of the “Immersion Carnival” is with ulterior motive and there is every likelihood of breach of peace and tranquility.

Upon hearing the arguments, the court stated that the impugned order severely restricts and reflects an unfettered exercise of discretion which opens the doors to arbitrariness and is an antithesis to the Rule of Law. It was held:

The width of prohibition contained in the impugned order is disproportionate, excessive and unreasonable. Such restrictions on fundamental rights cannot possibly achieve any bonafide purpose. It is true that there are wide powers granted to the State but the same does not justify either the impugned order or the refusal to grant a No Objection to conduct the “Droher Rally”.

There is also no merit in the contention raised on behalf of the State that the petitioners should postpone the “Droher Carnival” to any other day. Similarly, the choice for change of venue is also unacceptable and rejected. The width and draconian nature of the impugned order goes to the root of arbitrariness and makes it unsustainable, it was added.

Case: Joint Platform of Doctors & Ors. Vs. State of West Bengal & Ors.

Case No: W.P.A. 26117 of 2024

Citation: 2024 LiveLaw (Cal) 226

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