The Calcutta High Court has upheld the right of junior doctors to protest against the recent tragic incident involving the rape of a junior doctor at RG Kar Hospital in Kolkata.

The court set aside prohibitory orders issued by the Commissioner of Police, Kolkata, under Sections 163(1) and (3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.

In a ruling by Justice Ravi Krishan Kapur, junior doctors were granted permission to hold their "Droher Carnival" protest on Rani Rashmoni Road, close to the site of the State's Durga Puja immersion carnival.

The court dismissed the State's objections, stating, “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. The prohibitions outlined in the order are disproportionate, excessive, and unreasonable. Such restrictions on fundamental rights cannot possibly achieve any bonafide purpose.”

The case arose from an order issued on October 14, 2024, which prohibited gatherings of five or more individuals to prevent potential disturbances during the State's Durga Puja immersion carnival at Red Road, Kolkata.

The petitioners, represented by the Joint Platform of Doctors, sought to hold a "Droher Carnival"—a Doctors and Citizens Assembly—to protest the rape and murder of a postgraduate trainee doctor at R.G. Kar Medical College on August 9, 2024. Their application for permission, submitted on October 11, 2024, was denied by the police on October 13, citing concerns over safety and the proximity to the scheduled State event. Senior Advocate Bikash Ranjan Bhattacharyya, representing the petitioners, argued that the prohibitory order and the refusal to grant permission infringed upon their fundamental rights to freedom of speech and peaceful assembly under Articles 19(1)(a) and 19(1)(b) of the Constitution of India. They contended that such a blanket ban was unnecessary for maintaining law and order, asserting that the right to peaceful protest is fundamental to democracy and that the authorities had no valid grounds to deny them the opportunity to express their grievances regarding the brutal incident involving their colleague.

In opposition, the State, represented by Advocate General Kishore Dutta, argued that the planned protest would coincide with the “Immersion Carnival,” which attracts large crowds, and that any assembly near this venue posed a risk to public safety. The State suggested the petitioners could select an alternative date or venue to avoid conflict. Citing precedents from Mazdoor Kisan Shakti Sangathan v. Union of India (2018) and Amit Sahni (Shaheen Bagh) v. Commissioner of Police (2020), the State maintained that while the right to protest is protected, it must be balanced with the duty to maintain public order and peace.

However, the court found the State's argument unconvincing, stating that rescheduling the event or changing the venue was not justified. “While the State has wide powers, these do not validate the impugned order or the refusal to grant a No Objection to conduct the 'Droher Rally,'” the court added.

Referencing the Supreme Court's ruling in Anuradha Bhasin v. Union of India (2020), the court emphasized that the power to issue orders under Section 144 of the Cr.P.C. should be exercised judiciously and solely to preserve law and order. It noted that such orders must clearly outline the relevant facts and provide detailed justifications.

The court pointed out that the State’s suggestion for the "Droher Carnival" to be held at the Ram Leela Ground was appropriately rejected by the petitioners.

“The distance between the two venues is adequate, and the claim that the State cannot maintain law and order if both events are conducted simultaneously lacks any cogent rationale,” the court stated.

In conclusion, the court allowed the petitioners to proceed with the "Droher Carnival," directing the State to implement barricades and guard rails between Rani Rashmoni Avenue and Red Road to prevent disturbances. The police were instructed to deploy sufficient personnel to ensure the event remained peaceful, while the organizers were advised to arrange adequate volunteers to assist in maintaining order.

Cause Title: Joint Platform of Doctors & Ors. Vs. State of West Bengal & Ors. [W.P.A. 26117 of 2024]