Pictures and videos of the massive blockades at the sites of farmer protests at the Delhi borders have drawn attention because of their militaristic look, with huge concrete blocks, concertina wire, spikes, iron nails, and more.
Unlike the regular mobile barricades set up by the police to contain protests, the new blockades at Ghazipur, Singhu and Tikri are of a far more imposing and permanent nature, involving walls, cemented obstacles, and the digging up of roads using JCBs.
Thus far, much of the criticism of these new blockades has focused on the imagery of them, the rhetoric of a state at war with its own people.
However, the problems with these blockades go beyond rhetoric; as The Times of India and The Indian Express report, the police’s fortifications have also cut off the protesting farmers from water and sanitation facilities.
Which begs the question:
Do these blockades violate human rights law, whether domestic or international?
Access to Water and Sanitation
It is difficult to imagine that anyone would contest the right to clean water (especially for drinking) or the right to sanitation, but it may be instructive to see what domestic and international law have to say about them, to understand the obligations of the State when it comes to them.
Indian Law
The Supreme Court of India’s 1983 judgment in the Bandhua Mukti Morcha case implicitly recognised the right to clean drinking water within the right to life under Article 21 of the Constitution of India, as a facet of a ‘healthy environment’.
Crucially, the court put the onus on ensuring clean drinking water was available on the central and relevant state governments.
The apex court built on this further in cases in 2000 and 2001 where it confirmed that the right to access drinking water is fundamental to life, and again, that there was “a duty on the State under Article 21 to provide clean drinking water to its citizens.”
The right to sanitation was similarly recognised by the Supreme Court within the ambit of Article 21 in Virender Gaur vs State of Haryana in 1994 as a facet of a ‘hygienic environment’. Once again, the court recognised that this was a duty of the State, as part of its function of ensuring public health.
The fact that the Supreme Court has not just recognised the right to clear water and sanitation but also put the onus of ensuring access to these on the government, means that the Centre and respective state governments are under an obligation to ensure that any security measures they impose do not infringe these rights.
The fact that the current blockades make it impossible for even the water tankers being volunteered by the Delhi Jal Board to get through, highlights how they are a violation of fundamental rights under the Constitution.
International Law
Given the strong position of these rights in domestic law, it is not exactly necessary to look at India’s obligations under international law when it comes to water and sanitation.
Both fall within the right to life and are essential to realisation of all human rights, as explicitly highlighted in UN General Assembly resolutions in 2010 and 2015 (that India voted in favour of) – as such, in line with the Supreme Court’s rulings.
However, there is one particular aspect of international human rights law that is worth emphasising: The right of sanitation for women.
The Convention on Elimination of Discrimination Against Women 1979 (which India has ratified) expressly imposes a duty on States to “ensure to women... the right to enjoy adequate living conditions, particularly in relation to... sanitation”.
As noted by both The Times of India and The Indian Express, the cutting off of the protest sites from toilet facilities has forced protesters to resort to open defecation, and particularly created hardship for women.
This aspect only reinforces the sense that the government was under an obligation to ensure that their blockades did not affect the right to sanitation, given the presence of women protesters at the sites – which is in fact increasing at this time.
Necessity and Proportionality
The police forces will of course argue that they have no choice in this matter, that given the way things panned out on 26 January, they need these kind of massive blockades and barriers to prevent the farmers and their tractors from getting into Delhi and disturbing public order.
That even the rights to water and sanitation are not absolute and can be restricted.
This is no doubt true. However, as Supreme Court advocate Karuna Nundy points out, any restrictions on Article 21 rights have to satisfy a three-pronged test:
- Are they being imposed via a procedure established by law?
- Are they really necessary to deal with the threat to public order/other potential harm in question?
- Are they proportionate to the risk of the potential harm? (Which includes the question of whether they are the least restrictive method of dealing with the problem.)
The scale of the blockades in question here make it difficult to justify the second and third prongs of the test. Given the complete absence of violence or any threats to public order at the three protest sites, the necessity of them in general was already questionable; to do so in a manner which denies these fundamental rights only makes the questions harder to answer.
Permanent blockades of this sort, and the fact that the police deliberately set them up (at Singhu) between the protesters and facilities for portable toilets, would certainly be difficult to justify as proportionate actions as well.
Right to Assembly
While the infringements of the right to water and sanitation should be enough to make a cogent case for violation of human rights law, it is perhaps possible for these issues to be addressed without dismantling the blockades themselves, whether by providing portable toilets or ensuring water tanker access to the protest sites.
But would that mean the blockades do not violate other rights? Not really.
Indian Law
Article 19(1)(b) of the Constitution guarantees the right assemble peaceably and without arms to all citizens of India. This right is also subject to reasonable restrictions, “in the interests of the sovereignty and integrity of India or public order”.
The immovability of these blockades certainly impacts the right to assembly of the farmers looking to protest at these sites. Yes, they can still protest at their sites, but the right to peaceful assembly encompasses more than that, and includes the ability to assemble further forward as well.
Admittedly, such a right is not absolute and can be restricted in the interests of public order. But the question that has to be asked then, is why are these protest sites considered threats to public order?
In the Himat Lal case in 1972, a Constitution Bench of the Supreme Court had held that while citizens can’t exactly start assembling wherever they please regardless of the consequences, mere assembly does not in itself constitute a threat to public order.
Given there has been no violence at these protest sites for two months now (barring the clashes at Singhu where outside groups attacked the protest sites), it is certainly arguable that the protesters themselves do not impose a threat to public order that demands this level of blockading.
The violence on 26 January is the obvious complication here, since there were certainly public order implications to what happened on that day. However, as Nundy points out, there is a need to “draw a distinction between the entire protest being violent or merely a section including in stray acts of violence”.
This distinction becomes important, as Nundy explains, because not every breach of ‘law and order’ automatically qualifies as a threat to ‘public order’. The distinction has been recognised by the Supreme Court in a long line of cases, including the seminal Ram Manohar Lohia judgment in 1965. For something to rise to the level of a threat to public order, this would involve threats to a community, like a riot.
Any police assessments justifying these blockades have to be able to argue that the protest sites as a whole pose the risk of a riot or the kind of violence seen on Republic Day, as a result.
The unprecedented scale of the blockades could potentially be a problem for the government in light of the Supreme Court’s Anuradha Bhasin judgment in January 2020 as well. Looking at restrictions in Jammu and Kashmir, the court acknowledged that prohibitory orders under Section 144 – which are the basis for the blockades at the Delhi borders – are also subject to the doctrine of proportionality.
The restrictions imposed have to be the least restrictive possible, and there has to be material to justify the imposition of the restrictions on fundamental rights imposed in such cases. Would the events of 26 January truly justify this degree of impediment to the right to assembly?
International Law
A UN Special Rapporteurs’ report on the right to freedom of peaceful assembly notes that while restrictions to the right of peaceful assembly can be made in the interest of national security or public order, these must be lawful, necessary and proportionate to the aim pursued.
In this, international law doesn’t differ much from the position we can observe in domestic law. There are again, however, some further useful points to look at, which even if not binding, do seem worth mentioning in the context of these unprecedented blockades.
Restrictions on the right to public assembly are to be the exception, not the norm, and, very importantly, they “must not impair the essence of the right.” International law also speaks of an obligation on states to “facilitate the exercise of the right of peaceful assembly”.
This includes not only providing basic services such as medical assistance and clean-up services, but also effective communication and collaboration with the protesters.
“Communication is not limited to verbal communication and law enforcement officials must be trained on the possible impact of any indirect communication that may be perceived by organizers and participants as intimidation, for example, the presence or use of certain equipment and the body language of officials.”UN Special Rapporteurs’ Report dated 4 February 2016 (at para 38)
The nature of the current blockades – with their war zone feel and hyper-military deployments of security forces – are the exact opposite.
These elements of the blockades make it difficult to get access to water, sanitation and safai karamcharis as we already know from the existing news reports – and it’s not a stretch to see they could impact access to medical assistance as well.
And on top of this all is the whole feel of the blockades, from their threatening set-up to the way that set-up reflects on the protesters, that hardly facilitates the right to protest, or allow the protests to be viewed fairly.
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