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Freedom of assembly is our fundamental right, but Indian police just won’t let us exercise it

The courts have upheld the freedom time and again. But for the police forces around the country, might is always right.

Photo Credit: Sajjad Hussain/AFP
In India there would be a bewildering array of answers if one asked which public assemblies can be deemed as “unlawful” by the police. Although the freedom to assemble peacefully and without arms is a fundamental right under the country’s constitution, a long list of incidents prove that this right is subject to the arbitrariness of government and is frequently violated by high-handed police forces.

Early this month, when about 100 protesters, including pastors, sought to march to the Union Home Minister’s residence to protest against the string of attacks on churches in Delhi, the police cracked down swiftly and detained them. Justification for this action was provided by the invocation of Section 144 of the Code of Criminal Procedure, which empowers a magistrate to issue “prohibitory orders” and legally forbid 10 or more people from assembling in an area. But, as it later turned out, the magistrate had issued no such order and the police’s action was spontaneous and, going by a bare reading of the law, illegal.

It was evident in that episode that the police had chosen to disregard the Supreme Court’s binding directions issued in the Madhu Limaye case in 1971. Those orders clearly stated that the action (of restricting the public’s right to assembly) must not only be proportionate to the perceived threat of a breakdown in law and order, but also have a direct and proximate nexus.

Widespread misuse of law

There are many such instances of illegality in Delhi Police’s history. In those displays of arbitrariness, the police has not just flouted the law but often its spirit as well. In December last year, litigants frustrated by delayed justice and wanting to protest for judicial reforms were branded a “law and order” problem. At the eleventh hour their permission to demonstrate was withdrawn. In that case, the police also invoked Section 65 of the Delhi Police Act, which gives it carte blanche to remove a protester and detain him or her. Incongruously, such broad powers and directions given under them are considered “reasonable”.

The affliction goes beyond the Delhi Police. In 2011, its counterparts in Maharashtra arrested more than 1,000 people from various parts of Mumbai, because they were protesting against corruption. The legal provision used most often by the police there is Section 37 of the Bombay Police Act, which prohibits the “delivery of harangues, the use of gestures or mimetic representations, and the preparation, exhibition or dissemination of pictures, symbols, placards and effigies” because these are assumed to possess the capacity to endanger national security and overthrow the state.

In Maharashtra too, there was the case of the Ratnagiri administration using Section 144 of the Code of Criminal Procedure to prevent peaceful protests against nuclear power. The administration rationalised its action saying that two of the protesters – retired Supreme Court Judge PB Sawant and retired High Court Judge BG Kolse Patil – could have incited the mob and threatened the law and order situation. It took the Bombay High Court to restrain the government from taking its arbitrariness further.

Disregard of court orders

This recurring police high-handedness comes in the face of court interventions. On February 23, 2012, the Supreme Court had delivered another defence of the right to assemble peacefully in the case of the Delhi Police’s crackdown on those gathered at Ramleela Maidan to express solidarity with Anna Hazare’s anti-corruption campaign. In a verdict running into 102 pages, the court examined a list of judicial precedents, both from India and abroad, that uphold citizens’ right to gather and protest peacefully. Even if the protest includes those who adopt a militant posture and give a clarion call to vote it out of power.

The court found that the government and Delhi Police’s actions – imposing Section 144 of the Code of Criminal Procedure and the subsequent use of force – was wholly disproportionate and excessive and therefore beyond the limits permitted by the constitution.

Most significantly, the court said that there is a direct, not merely implied, responsibility on the government to act openly and in public interest while imposing Section 144. Although there is a legitimate state interest in regulating both freedom of assembly and expression, restrictions need to be imposed reasonably, so that they do not turn into arbitrary prohibitions.

In December 2012, when thousands of protesters marched to Rashtrapati Bhavan to register their anger at the gangrape of a physiotherapy student, the police again showed its brutal might. Prohibitory orders were imposed, bringing central Delhi under lockdown; water cannons were used; and an indiscriminate lathi-charge followed. The court again censured the police and the administration, and underscored that arbitrary imposition of Section 144 erodes the provision’s sanctity.

The court has reserved its verdict in that case, but should that prevent the Delhi Police from acting constitutionally?

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