Calcutta HC allows BJP's 'Rath Yatra' in West Bengal after WB authorities refuse permission

While directing the police to deploy adequate force to ensure that there is no breach of law and order,Justice Tapabrata Chakraborty asked the state BJP to inform the  superintendents of police of districts where the rallies will enter at least 12 hours ahead of schedule and to ensure that the 'yatras' are conducted by abiding the law and they do not impede normal movement of vehicular traffic.

The court said that the petitioner BJP will be vicariously responsible for any damage or loss of public property.

Welcoming the order, the BJP hit out the ruling Trinamool Congress in West Bengal for denying permission for its rally and questioned the "silence" of opposition on the issue.

"Why are human rights activists and opposition parties silent on denial of a right to a political party to organise its programme in West Bengal. If any NDA/BJP Government had stopped an opposition Programme, it would have been called an “Undeclared Emergency”. Why Silence now?" BJP leader and Union Minister Arun Jaitley tweeted.

State president Dilip Ghosh said that a new schedule for holding the rath yatras will be prepared. "I can assure that there will be no breach of law and order from our part," he said.

The party had planned three 'Rath yatras' from different parts of West Bengal which  will travel across the state's 42 parliamentary constituencies. The rallies are part of the BJP's aggressive  campaign to make inroads in the state, where it is gradually increasing its vote share. It has three MLAs in the 294-member Assembly and two Lok Saha MPs from the state.

On December 6 a single judge bench of the HC had refused permission to BJP to hold the 'Rath Yatra', which was scheduled to be flagged off by BJP chief Amit Shah from Cooch Behar in North Bengal on December 7. The party had then approached the division bench.

The division bench had on December 7 asked the state chief secretary, the home secretary and the director general of police to hold a meeting with three representatives of the BJP and take a decision on the 'yatra' by December 14.

After parleys with the BJP team, the three officers refused permission for the rallies on December 15 on the grounds that it might lead to communal tension. The state BJP had moved the court again challenging the government's denial of permission to its programme.

Allowing the BJP rallies,  Justice Chakraborty observed that the officials concerned did not have sufficient material to totally deny permission to the petitioner to organise the rallies, without even making an endeavour as to whether the yatras can be allowed by imposing reasonable restrictions.

The court observed that discretion exercised by the administrative authorities can certainly be interfered with by the court, specially when such powers have been exercised in a whimsical manner.

Advocate General Kishore Dutta had submitted before the court that it has limited scope of judicial review in an administrative decision to not allow the yatra on the basis of intelligence inputs and apprehensions of communal tension.

Dutta had on Wednesday submitted a report in a sealed cover to the court apparently detailing the intelligence inputs of likely communal unrest if the yatra was allowed.

Justice Chakraborty said that as the yatras are not for any unlawful purpose, they ought not to be totally prohibited unless there is imminent threat of breach of peace and even then, the restraint should be just and reasonable.

Observing that the petitioner has been mechanically denied permission to organise the yatra, the court said that reliance has been placed on intelligence reports by the administration for such denial, but names of the districts have not been disclosed.

The court also noted that the BJP had written several letters to different administrative and police officers from October 29 for consultations for the Rath Yatra, but none were responded to.

According to the original schedule submitted by the BJP,  Shah was to kickstart the campaign called 'Save Democracy Rally' from Cooch Behar district on December 7, from Kakdwip in South 24 Parganas on December 9 and from Tarapith temple in Birbhum on December 14.

Justice Chakraborty, who presided over the earlier single bench that injuncted the yatras on December 6, said that the sole ground of the earlier judgement was that the rally was to start from 10 am the next morning.

Praying for setting aside of the denial of permission by the three officers, BJP counsel S K Kapur alleged on Thursday that the decision communicated to the party was at the behest of the state government.

Kapur submitted that it does not reflect any independent application of mind by the court-appointed members and as such was not sustainable. Rallies are part of political activities of a political party and a decision to restrict or prohibit must be based on cogent reasons, he said.

Appearing for the state, Advocate General Kishore Dutta submitted that rights under Article 19 of the Constitution are not absolute and are subject to public order, meaning that the sovereign can restrict or prohibit a rally.  Dutta said there is apprehension  that the yatras will turn into communal propaganda.