The government will be on the backfoot if Team Anna takes the issue of the activist's detention to court, says Vicky Nanjappa
Home Minister P Chidambaram on Tuesday made it clear that Anna Hazare and his team could have moved the court if they had problems with the conditions imposed on the activist's proposed fast by the Delhi police.
But given the glaring loopholes in the hasty action taken against Hazare, the government seems to be on a very weak footing.
Former Karnataka Lokayukta Justice Santosh Hegde, who was a member of the joint drafting committee of the Lokpal Bill, stated that the arbitrary act of detaining Hazare would count against it in a legal arena.
The government may argue that the Delhi police had apprehended trouble from Hazare's protest, but it would have to explain why Hazare was detained hours before he could start his fast.
The Constitution clearly states that no person shall be detained arbitrarily without solid ground being provided for the detention.
It is the government's responsibility to organise adequate security during such protests. As the Delhi government has notified certain areas in the capital to stage protests, the demand by Team Anna to hold protests in these areas is legally valid.
The government doesn't have the right to impose a time-frame for a protest as an individual or a group has the right to protest for as long as he/they want.
The government does have the right to restrict the number of vehicles parked near the area of protest.
According to former advocate general of Karnataka Ashok Harnahalli, the Supreme Court should have acted sooner on the case filed against the crackdown on Baba Ramdev's protest in Delhi. The court's stance about the yoga guru's case would have set a precedent for such legal matters.
In the absence of a clear-cut judgment in such cases, the government is likely to rely on the various judgments we have on bandhs and strikes.
A landmark ruling of the Kerala high court, upheld later in part by the Supreme Court, had termed bandhs as unconstitutional. The verdict stated that bandhs disrupted normal life and hit essential services.
But this verdict might not be the benchmark for Hazare's case as the activist had not called for a bandh.
Hazare's refusal to leave Tihar jail may land the government in further trouble, as keeping a prisoner in jail despite a release order is an illegal act. Hazare can argue that he refused to leave the prison as he was apprehensive about being arrested again once he started his protest.
Any person who has been detained for more than 24 hours has to be produced before a magistrate. Hazare was remanded to judicial custody and the order of release was issued later. In spite of his refusal to leave Tihar jail, the police should have produced him before the court.
Any verdict by the Supreme Court on such a case will be crucial for such large-scale protests in the future as the country needs legal guidelines about them. While a government cannot refuse a citizen the right to protest, it can subject a protest to reasonable conditions.
The court will also have to determine if the government's actions were too drastic or if the situation warranted such action.
