The balance between the fundamental right to assemble and the state’s law & order duty has recently veered toward public order at the expense of constitutional freedoms. As long as protestors are viewed as the enemy, research and past experience indicates, more civil strife is likely
New Delhi: States have the power to regulate all public assemblies, including those that are peaceful, and they have the authority to either grant or reject prior permissions.
In exercise of this power, Haryana on 20 September and Delhi Police on 11 November denied permission for a protest march by farmers, citing the Covid-19 pandemic and the purported apprehension that the protests “may” lead to a breakdown of law and order.
On 8 December, the day of a Bharat bandh, or national shutdown call by farmers and opposition parties, many states ruled by the Bharatiya Janata Party informally confined political figures, imposed restrictions on assembly, and, in the case of Gujarat, even threatened police cases for releasing photos or videos of the protests.
Perhaps the denial of permits was warranted in light of the pandemic, but very recently the Delhi Government itself organised a concert in Delhi’s Central Park, where thousands queued to celebrate Diwali. This was a four-day event amidst a sharp rise in Covid-19 cases in the capital.
Meanwhile, as agitated farmers struggled to enter Delhi, Prime Minister Modi celebrated Dev Deepavali in Varanasi where massive crowds assembled at the famous ghats. In light of these events, one has to wonder whether public safety in the pandemic was a legitimate concern or an excuse to selectively deny the right to protest.
The farmers’ protests had been going on in Punjab since September, yet no reports of violence had emerged until the lack of response by the Centre pushed them to travel all the way to the national capital. They marched to Delhi hoping their grievances would be heard. Instead, they were met with force—water cannons and tear gas—and the State intentionally dug up roads to obstruct them.
The treatment meted out to the farmers begs the question: why are public demonstrations presumed to be a threat to public order or national security? Why does the State forcefully suppress protests even when they are peaceful?
Protecting public safety is a legitimate state interest. However, research (here, here and here) shows that as long as protestors are viewed as the enemy, more civil strife is likely. The last bastion of hope for those who are left unheard is the right to protest. When the state violates this right of the people, the likelihood of violence increases.
The Presumption Against Peaceful Protests
If recent history is any indicator, the balance between the fundamental right to assemble and the state’s responsibility to ensure law and order has often veered toward public order at the expense of constitutional freedoms.
It appears that the focus of the State is never on protecting the rights of the protestors, but on the possibility of abuse of their right to protest.
My analysis of past mass protests in India suggests that most peaceful demonstrations turned violent when the State infringed upon the people’s right to assemble, while almost always resorting to the age-old section 144 of the Code of Criminal Procedure (CrPC), 1973. It is also often the case that this archaic law is invoked as a reaction to people’s dissent and disapproval of state policies.
Overwhelming evidence (here and here) points to the police’s use of excessive force on protestors. A controversial August 2020 report by Amnesty International, which later allegedly became the reason for its abrupt shutdown in India, found that the Delhi police were complicit and active participants in the anti-CAA riots. The police were accused of either supporting the mobs or looking the other way as the capital burned.
The Delhi government’s home department flagged a set of seven videos that demonstrated the complicity of the Delhi police in inciting violence or being bystanders.
Various courts have also cited gaping holes in police conduct and the investigation of the Delhi riots. One such November order pointed at the vindictiveness of the police. Another October order of the Delhi High Court highlighted the delay in registration of a first information report (FIR) and production of unreliable witnesses. Some orders confirmed that police officials did not call for assistance or record what violence they encountered.
Vibhuti N Rai of the Indian Police Service has candidly remarked that “in any city or state of the country, a riot can be controlled within 24 hours unless the state wants it otherwise”. Indeed, pro-CAA demonstrations got a green signal (here and here), and a BJP leader, Kapil Mishra, who was caught on camera hurling instigating a mob at Delhi’s Jaffrabad was let off without consequence.
This impunity enjoyed by the state is the underlying feature of most protests that started out peacefully, but erupted in violence. There is similar evidence from other states.
In January 2017, the people of Tamil Nadu gathered to protest against the ban on the traditional bull-taming sport called Jallikattu. Then too, protestors had come together to voice their dissent, as a mode of protecting what they considered to be an important part of their identity.
Peace during the pro-Jallikattu protests, however, was short lived, as the police cracked down on revellers, even as the protest was called-off. In an attempt to evict the protestors, police rampaged through the streets of Chennai, burning an entire fishmarket to ashes and damaging public property. At the time, the National Human Rights Commission took suo moto cognisance of the issue and observed that the “unprovoked police action amounted to violation of human rights”.
Similarly, in February 2016, Haryana experienced chaotic protests as members of the Jat community sought political and economic reservations for other backward communities or OBCs. The agitation started peacefully but turned violent, resulting in the deaths of at least 30 people and leaving many injured, including security personnel. The aftermath of these protests were estimated to have caused a loss of approximately Rs 34,000 crore to the state.
Law-enforcement officials, at the time, were accused of mobilising communities on political lines. Some bureaucrats in Haryana alleged that when the reservation violence started, police officers took a political decision to wait and watch. Even university students had complained of police stations being locked for several days during the agitation, making it impossible to access the police.
The situation was so out of control that the Haryana government called in the army: twelve battalions were deployed to check the violence. The June 2016 Prakash Singh committee report on the Jat protests cited several instances where the army had been deliberately misled or underutilised by the police.
The Jat protests in Haryana, pro-Jallikattu demonstrations in Tamil Nadu, and the anti-CAA protests in Delhi are not isolated events. There are many such examples in India’s recent history.
While the causes for the outbreak of unrest may have been different in each of these events, these protests are similar, in that the state failed to ensure law and order and resorted to use of excessive force to suppress the agitations. These events highlight important concerns about the state’s willingness and approach to protect its people’s right to protest peacefully.
The Law As Instrument Of Suppression
Section 144 of the CrPC empowers the magistrate of any state or union territory in India to pass an order prohibiting the gathering of five or more people in a specified area. This provision is often read with section 129 of the Code, which grants authority to law enforcement to use force to disperse unlawful assemblies in the interests of public order.
However, the authority to use force is not unfettered.
Police officials may only use force if other means remain ineffective or have no promise of achieving peace. Yet, an analysis of cases where section 144 was invoked shows that the police, by design, impose a blanket ban on peaceful demonstrations in the guise of preventive measures, use excessive force and fail to explore alternative means.
A law introduced by the British in 1861 to suppress freedom fighters during colonial rule is today relied upon by those who are sworn to serve and protect free India. In 2019 alone, India witnessed at least 10 instances of section 144 within a span of 8 months, each time moving further away from a free democracy.
The highest court of India, as recently as January 2020 held that the power under “section 144 cannot be used as a tool to prevent the legitimate expression of opinion or grievance or exercise of any democratic rights”. It went on to reiterate that there must be a “rational link” between the imposition of section 144 and the effect it intended to have.
The position of law with regard to imposition of section 144 and use of undue force was also clarified when the court observed that the “perception of threat to public peace and tranquility should be real” and the trigger to use force cannot be “imaginary or a mere likely possibility”.
The Supreme Court cast upon law enforcement the duty to turn to section 144 only if “the consequences are sufficiently grave” and the ban on assembly is “able to prevent some harmful occurrences”.
But the same court enforced further restrictions on the right to protest when it pronounced its judgment in the 2020 case of Amit Sahni vs Commissioner of Police & Others, which related to anti-CAA protests in Shaheen Bagh. This ruling was criticised as the court came down heavily on the demonstrators. The court concluded that protestors cannot hold public spaces indefinitely, even though it noted that the protests were being held in an area designated for demonstrations.
During protests concerning the contentious Cauvery water issue in Karnataka and Tamil Nadu, the Supreme Court in 2016 ruled that "there cannot be any agitation when it relates to an order passed by the court”, once again curbing the fundamental right to protest.
The Constitution of India assumes a benevolent state and public discussion as a state duty. When the state fails in its duty, the Constitution provides for a judicial system that is meant to serve as a safe haven for the Indian people. For both these institutions, using the law as a means to suppress criticism ought to be the last resort; fostering meaningful dialogue with people, the first.
The state’s treatment of the farmers in the on-going protests is yet another assault on constitutional freedoms, an example of how India is moving away from a society where the constitutional right to protest is protected.
The farmers have vowed to keep protests going. Their intensity and resolve is evidenced from the fact that they have brought with them supplies to last for at least six months. However, the survival of these passionate protests will largely depend upon whether the court will once again uphold its Shaheen-Bagh ruling or re-establish the farmers’ affirmative right of peaceful assembly.
(Mani Chander is a practicing lawyer based in New Delhi.)