Right to Peaceful Assembly Is Fundamental, But Perils Abound

The hurdles being put in the path of peaceful protesters are multiplying, despite the Constitution’s guarantees.

Article 19(1)(a) of our Constitution guarantees the fundamental right to freedom of speech and expression. Despite this guarantee, few people are understandably uncertain of the extent to which this fundamental right protects them.

For example, a journalist was booked last year for sedition for speculating on a likely change of leadership in a particular state. Surely, he couldn’t have expected that.

There are many such instances of irrational curbs on freedom of speech and expression, but it is not necessary to recall them.

The attack on free speech is from all over and has reached such proportions that today, believe it or not, a person cannot even say his or her interfaith marriage vows in a particular state, without the possibility of ending up in the jailhouse. So much for freedom of speech.

Next on the list of fundamental rights in our Constitution is Article 19(1)(b), which guarantees the right to assemble peaceably and without arms. Unfortunately, this right is also facing the battering ram.

Site of Protest: Open Jail or Closed?

The Supreme Court has recently opined that “while appreciating the existence of the right to peaceful protest against a legislation ….. we have to make it unequivocally clear that public ways and public spaces cannot be occupied in such a manner and that too indefinitely.”

Does this mean that the right to protest against a policy decision of the government or some other weighty reason (other than a legislation) is permissible on public ways and public spaces and that too indefinitely? I don’t think the Supreme Court meant its views to be construed so narrowly.

Assuming the Supreme Court was painting a larger canvas, where in Delhi can one protest? The Boat Club is closed, Jantar Mantar is not too large an area for a meaningful protest, Ramlila Maidan is out of bounds and a protest on the India Gate lawns is a security hazard. Is any place left? Before you can answer, Section 144 will be imposed by the authorities.

In other words, there is no way that you can now protest in public in Delhi. Colonial and post-independence methods of protest have been rendered ineffective in free India through the use of colonial laws by the state to allegedly maintain public order and protect the Constitution.

But, there is still one (deemed designated) place where a protest can be held – in Burari on the outskirts of Delhi, a place not easily accessible to anyone and recently described as an open jail.

So future protesters in Delhi may be well advised that if they want to protest, the designated place is in the nature of an open jail. How they propose to reach Burari is their problem. Alternatively, they can violate the law and go to a closed jail, like Tihar, for example.

Challenges to Protest

Permission

What if the protestors insist on protesting somewhere closer to the heart of Delhi?

First, they would have to explain to the authorities the occasion that is causing them to protest. The authorities might deny permission to protest against that cause – police brutality, for example, may not be a good reason to protest. Maybe it’s too sensitive, and the protesters might have to go to court to prove that it is not. It’s anybody’s guess how long the court will take to decide.

Duration

Second, the protest cannot be indefinite. The protestors would have to tell the authorities how long they would like to protest – half hour, one hour, a couple of days and so on. Maybe the authorities will be kind enough to give them ten or fifteen minutes to protest and make way for the next protest. If they would like to protest a bit longer, please go to court.

Legal hurdles, public hate and harassment

If the protesters do go to court and get a favourable order, they should be prepared to receive invectives hurled at them, like being called a Khalistani or an urban naxal or a member of the Khan Market or tukde tukde gang or Lutyens lobby or something equally outrageous. Second, they should be prepared to get arrested for sedition or under the Unlawful Activities (Prevention) Act – even if no such offence is made out.

‘Let the law take its course’ will be the standard explanation and the law will take its tortuous course while the protesters languish in jail.   

For example, traffic barriers can be put up to slow down the traffic and harass commuters. It appears that during the Shaheen Bagh protest, traffic was intentionally diverted to create traffic jams so as to turn commuters against the protesters.

The latest ploy is to dig trenches and maul the road – protesters cannot harass commuters, but the state is entitled to, with impunity. Other methods are also available to the state to legally prevent a large turn-out, such as closing down a few metro stations or jamming internet connectivity.

Fifth, they should be prepared to receive a bill for damage to public property and be named and shamed through public hoardings if they don’t pay up.

A Fundamental Right

It's not enough to deny that a particular individual did not damage public property – he or she has to prove it. But it’s all right if the police damage public property and even private property or cause bodily harm – that’s part of their job for maintaining law and order. Expensive CCTV cameras have been broken by the police in the past, but so what?

I do not condone violence or damage to public or private property, but I do believe that if functionaries of the state damage public or private property or cause bodily injury, they should also bear the consequences, including financial consequences – the law must be applied equally, expeditiously and not selectively.

Place this in the context of the ongoing farmers’ protest. Everything available has been thrown at them during the harshest winter that the Delhi border has faced in over a decade and yet they are courageously continuing with an indefinite protest, at non-designated public places and not against one but three legislations.

Yet, no action has been taken against them. Perhaps you will now be able to appreciate the dynamics involved in the exercise of the fundamental right to assemble peaceably and without arms.

(Justice Madan B Lokur is a retired judge of the Supreme Court of India. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)